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NORTH CAROLINA
Volume 45
Number 1
fus l. edmisten
torney General
Digitized by the Internet Archive
in 2011 with funding from
Ensuring Democracy through Digital Access (NC-LSTA)
http://www.archive.org/details/northcarolinaatt19751976
45 N.C.A.G. No. 1 Pages 1 through 187
NORTH CAROLINA
ATTORNEY GENERAL
REPORTS
Opinions of the Attorney General
July 1, 1975 through December 31, 1975
MAILING ADDRESS:
Post Office Box 629
Raleigh, North Carolina 27602
RUFUS L. EDMISTEN
Attorney General
James F. Bullock Andrew A. Vanore, Jr.
Senior Deputy Senior Deputy
Attorney General Attorney General
Robert Bruce White, Jr.
Senior Deputy Attorney General
Jean A. Benoy I. Beverly Lake, Jr.
Deputy Attorney General Deputy Attorney General
Millard R. Rich, Jr.
Deputy Attorney General
Charles H. Smith Howard A. Kramer
Administrative Deputy Deputy Attorney General
Attorney General for Legal Affairs
John A. Elmore, II
Special Assistant to the Attorney General
Myron C. Banks William F. O'Connell
James L. Blackburn James B. Richmond
T. Buie Costen Jacob L. Safron
Sidney S. Eagles, Jr. John M. Silverstein, Jr.
Herbert Lamson, Jr. Eugene A. Smith
John R. Matthis Edwin M. Speas, Jr.
William W. Melvin
Special Deputy Attorneys General
,
Archie W. Anders
_
George W? Boylan
William F. Briley
Lester V. Chalmers, Jr.
H. Al Cole, Jr.
Roy A. Giles, Jr.
Robert P. Gruber
Zoro J. Guice
Guy A. Hamlin
Claude W. Harris
Ralf F. Haskell
Charles M. Hensey
I. B. Hudson, Jr.
Parks H. Icenhour
Richard F. Kane
Richard N. League
James E. Magner, Jr.
Charles J. Murray
Conrad O. Pearson
George J. Poe, Jr.
William A. Raney, Jr.
William B. Ray
Marcella Ann Reed
Robert R. Reilly, Jr.
Thomas M. Ringer, Jr.
Jerry J. Rutledge
Alfred N. Salley
Robert G. Webb
W. Woodward Webb
Thomas B. Wood
Assistant Attorneys General
John W. McDevitt
Consultant
Noel L. Allen
Isaac T. Avery, III
William H. Boone
Jesse C. Brake
E. H. Bunting, Jr.
Joan H. Byers
James M. Carpenter
Elizabeth R. Cochrane
Jack L. Cozort
David S. Crump
Jerry B. Fruitt
Richard L. Griffin
William H. Guy
Claudette C. Hardaway
Norma S. Harrell
Alan S. Hirsch
Robert W. Kaylor
Sandra M. King
Daniel C. Oakley
George J. Oliver
Thomas L. Pollard
Wilton E. Ragland, Jr.
Jo Anne S. Routh
James E. Scarborough
James L. Stuart
James M. Wallace, Jr.
Patricia H. Wagner
Acie L. Ward
David D. Ward
Associate Attorneys
J. C. Rudisill, Jr. David L. Best
Attorneys, Criminal Justice Training and Standards Council
8 July 1975
Subject:
Requested by:
Questions:
Conclusions:
Motor Vehicles; Equipment and
Construction; Use of Red Lights
Mr. T. Perry Jenkins
Law Enforcement Legal Advisor
Region L, Council of Governments
(1) Does the sheriff or chief of police
have authority to regulate who among the
members of a (a) volunteer fire department
or (b) rescue squad may have and use red
lights on their private vehicles?
(2) When and under what circumstances
may the sheriff or chief of police regulate
the use of red lights by members of
voluntary fire and rescue units on their
private or personal vehicles?
(1) Firemen are permitted under the
provisions of G.S. 20-130.1 to use red
lights on their personal or private vehicles
so long as the red light is activated only
in the performance of their duty. Red
lights are approved only for rescue squad
vehicles owned and operated by the rescue
squad while on rescue squad business. No
members of rescue squads except chiefs
and assistant chiefs, as provided by
G.S. 2.0-1 25(b), may use red lights on their
private cars.
(2) G.S. 20-130.1 allows these red lights
to be used by firemen on their personal
vehicles so long as they are activated only
while in the performance of their duty as
firemen while answering a fire call. That
portion of G.S. 20-130.1 (hereinafter set
out) relating to local police approving
1
equipment owned by life saving
organizations was or appears to have been
repealed by the enactment of Article 56
of Chapter 143 (Emergency Medical
Services Act of 1973) which places the
responsibility for approval of emergency
service equipment in the Department of
Human Resources.
G.S. 20-130.1 reads as follows:
" § 20-130.1. Use of red lights on front of vehicles
prohibited; exceptions. - It shall be unlawful for any
person to drive upon the highways of this State any
vehicle displaying red lights visible from the front of
said vehicle. The provisions of this section shall not
apply to police cars, highway patrol cars, vehicles
owned by the Wildlife Resources Commission and
operated exclusively for law-enforcement purposes,
ambulances, fire-fighting vehicles, school buses, a
vehicle operated in the performance of his duties or
services by any member of a municipal or rural fire
department, paid or voluntary, or vehicles of a
voluntary life-saving organization that have been
officially approved by the local police authorities and
manned or operated by members of such organization
while on official call or vehicles operated by medical
doctors and anesthetists in emergencies or to such
lights as may be prescribed by the Interstate
Commerce Commission. The provisions of this section
shall not apply to motor vehicles used in law
enforcement by the sheriff or any salaried deputy
sheriff or salaried rural policeman of any county,
regardless of whether or not the vehicle is owned by
the county."
Rufus L. Edmisten, Attorney General
William W. Melvin
Assistant Attorney General
8 July 1975
Subject: Motor Vehicles; Requirements; Bikes with
Helper Motors
Requested by: Colonel E. W. Jones
Commander
N. C. State Highway Patrol
Question: Must a pedal bicycle with a helper motor
having a speed capacity in excess of 20
miles per hour meet the requirements of
a motorcycle?
Conclusion: Yes.
G.S. 20-50.1 specifically requires that such vehicles be incapable of
exceeding 20 miles per hour in order to be exempt from all title
and registration requirements of Chapter 20. Unless this standard
is met, then the vehicle cannot be exempt and would be treated
as a motorcycle.
Likewise, such a bicycle must meet the operation and equipment
standards of a motorcycle if it can exceed the speed of 20 miles
per hour. The definition of a motorcycle under G.S. 20-4.01 (27)d,
as amended by 1975 Amendment, Chapter 94, exempts bicycles with
helper motors only if their maximum speed is 20 miles per hour.
Otherwise, they shall be classified as motorcycles and subject to
all the requirements in Chapter 20 that concern motorcycles.
Rufus L. Edmisten, Attorney General
William W. Melvin
Assistant Attorney General
11 July 1975
Subject: Motor Vehicles; Driver's License; Bikes
with Helper Motors
Requested by: Ms. Sarah F. Patterson
Assistant District Attorney
Seventh Solicitorial District
Question: Is a motor vehicle operator's license
required to operate a bike equipped with
a helper motor of less than one brake
horsepower on the highways and streets?
Conclusion: No.
Chapter 859 of the 1975 Session Laws of North Carolina amends
G.S. 20-4.01(23) and G.S. 20-8 and effectively exempts persons
over the age of 16 years from the driving license requirements.
The pertinent portions of G.S. 20-4.01(23) and G.S. 20-8, after
amendment, read as follows:
"§ 20-4.01. Definitions. -Unless the context
otherwise requires, the following words and phrases,
for the purpose of this Chapter, shall have the
following meanings:
* * *
(23) Motor Vehicle.-Every vehicle which is
self-propelled and every vehicle designed to run upon
the highways which is pulled by a self-propelled
vehicle. This shall not include bicycles with helper
motors rated less than one brake horsepower which
produce only ordinary pedaling speeds up to a
maximum of 2.0 miles per hour."
"§ 20-8. Persons exempt from license -The
following are exempt from license hereunder:
(7) Any person who is at least 16 years of age and
while operating a bicycle with a helper motor rated
-4-
less than one brake horsepower which produces only
ordinary pedaling speeds up to a maximum of 20 miles
per hour."
This opinion modifies the prior Opinion of this office dated 8 May
1975 to Ms. Sarah F. Patterson, Assistant District Attorney, Seventh
Solicitorial District, insofar as same held that a motor vehicle
operator's license was required to operate bicycles with helper
motors.
It should be noted that operators of bicycles with helper motors
are subject to the rule of the road as set forth in Chapter 20 of
the North Carolina General Statutes, except those rules which by
their nature can have no application.
Rufus L. Edmisten, Attorney General
William W. Melvin
Assistant Attorney General
15 July 1975
Subject:
Requested by:
Question:
Conclusion:
Public Officers and Employees; Double
Office Holding; Appointment to County
Board of Social Services of Individual Who
is Member of County Board of Education
and Municipal Employee
Mr. Michael S. Kennedy
Attorney for Cleveland County
Department of Social Services
May an elected member of the school
board of a county who is also a regular
employee of a municipality within the
county be appointed as a member of the
County Board of Social Services?
Absent a conflict of interest under
G.S. 14-234, the individual described may
-5-
be appointed as a member of the county
board of social services.
Inasmuch as G.S. 128-1.1, inter alia, permits concurrent holding of
an elective and appointive office, place of trust or profit, this
question was apparently posed due to the individual's employment
by the municipality. The main concern here appears to be whether
this individual's regular employment for compensation can be
construed as a "...place of trust or profit" in local government.
The terminology "office" and "place of trust or profit", as found
in the State Constitution and statutes, are in all essential respects
identical. Groves v. Barden, 169 N.C. 8 (1915). The terms are
designed to denote positions occupying the same level of dignity
and importance, with the latter terminology being utilized to prevent
evasion resulting from attributing overly technical meaning to the
word "office". State ex rel Wooten v. Smith, 145 N.C. 476 (1907).
Thus, in determining if the position in question here is a place of
trust or profit, the following language of the Supreme Court of
North Carolina would be applicable:
"Our Court is in line with the current of authority,
having adopted and approved the definition of an
office, that it is 'a public position to which a portion
of the sovereignty of the country, either legislative,
executive, or judicial, attaches for the time being, and
which is exercised for the benefit of the public,' and
saying further: ' The most important characteristic
which distinguishes an office from a public agency is
that the conferring of the office carries with it a
delegation to the individual of some of the sovereign
functions of the Government.' S. v. Smith, 145 N.C,
477. If, therefore, there is no constitutional
classification of offices and employments, and a duty
is imposed upon the incumbent of a position which
requires him to perform a legislative, executive, or
judicial act, he is a public officer, and otherwise an
employee; and in determining the nature of the duty,
the fact that the lawmaking power may have declared
the position an office or an employment, although not
conclusive, is entitled to consideration." Groves v.
Barden, supra, at pages 9-10.
If, under the above guidelines, the individual concerned can be
realistically classified as an employee, then his appointment to the
county board of social services falls outside the prohibition on dual
office holding set forth in G.S. 128-1.1. Of course, care should be
exercised to insure that this appointment will not fall afoul of the
proscription against conflict of interest as contained in G.S. 14-234.
Rufus L. Edmisten, Attorney General
William F. O'Connell
Assistant Attorney General
15 July 1975
Subject: Mental Health; Courts; Infants and
Incompetents; Voluntary Admission of a
Minor to a Treatment Facility
Requested by:
Question:
Conclusion:
Dr. N. P. Zarzar
Director
Division of Mental Health Services
Department of Human Resources
Does the United States Supreme Court
Decision in O'Connor v. Donaldson ,
U.S. , 43 L.W. 4929 (1975) require
a finding that a minor is dangerous to
himself or others in order to justify his
retention in a treatment facility pursuant
to G.S. 122-56.7?
The United States Supreme Court Decision
in O'Connor v. Donaldson, U.S.
, 43 L.W. 4929 (1975) does not
require a finding that a minor is dangerous
to himself or others in order to justify his
retention in a treatment facility pursuant
to G.S. 122-56.7.
-7-
Article 4, North Carolina General Statutes, provides for voluntary
admission to a treatment facility upon application by an individual
who "is in need of treatment for mental illness or inebriety." See
G.S. 122-56.3. In the case of a minor, the application for admission
is made by a parent, person standing in loco parentis, or guardian.
G.S. 122-56.5.
While not altering the statutory provisions for voluntary admission
of minors, the 1975 General Assembly enacted the following
legislation (effective July 1, 1975) further protecting minors:
"§ 122-56.7. Judicial determination .-(a) A
hearing shall be held in district court in the county
in which the treatment facility is located within 10
days of the day a minor or a person adjudicated non
compos mentis is admitted to a treatment facility
pursuant to G.S. 122-56.5.
(b) The court shall determine whether
(1) such person is mentally ill or
inebriate and
(2) is in need of further treatment at
the treatment facility.
(c) The initial hearing and all subsequent
proceedings shall be governed by the involuntary
commitment procedures of Chapter 122, Article
5A of the General Statutes. Provided that in a
case involving an indigent respondent, located
at a regional psychiatric facility for the care and
treatment of the mentally ill and inebriate,
special counsel authorized by G.S. 122-58.12
shall act as his counsel at the initial hearing."
While providing the additional procedural safeguards afforded in
involuntary commitment cases, the General Assembly clearly did not
intend to require a finding of dangerousness in order to retain a
voluntarily admitted minor in a treatment facility. However, with
the advent of the decision in O 'Connor v. Donaldson (decided June
-8-
26, 1975), apparently concern has arisen as to the standards set
forth in the new statute. More specifically, the position has been
advanced in some circles that, in order to justify retention of a
minor in a treatment facility, there must be a finding of
dangerousness, in addition to or as opposed to the fundamental
findings of mental illness or inebriety and need for treatment.
Close reading of the decision in O'Connor reveals that the author
of the majority opinion took great pains to point out the following
limitations on the applicability of the decision:
"We need not decide whether, when, or by what
procedures, a mentally ill person may be confined by
the State on any of the grounds which, under
contemporary statutes, are generally advanced to
justify involuntary confinement of such a person-to
prevent injury to the public, to ensure his own survival
or safety, or to alleviate or cure his illness....
* * *
A finding of 'mental illness' alone cannot justify
a State's locking a person up against his will and
keeping him indefinitely in simple custodial
confinement. Assuming that that term can be given
a reasonably precise content and that the 'mentally
ill' can be identified with reasonable accuracy, there
is still no constitutional basis for confining such
persons involuntarily if they are dangerous to no one
and can live safely in freedom....
In short, a State cannot constitutionally confine
without more a nondangerous individual who is
capable of surviving safely in freedom by himself or
with the help of willing and responsible family
members or friends...." (Emphasis supplied)
Initially, of course, the O'Connor decision dealt with an adult.
Notwithstanding the present trend toward recognition of the rights
-9-
of minors-to include such constitutional rights as equal protection
and due process-it is generally recognized that some variations from
those rights as afforded adults is necessary and desirable. Cf.
McKeiver v. Pennsylvania, 403 U.S. 528 (1971). In the present
context, several very valid bases for different standards for the
admission of minors to treatment facilities readily come to mind.
Among these are the necessity to provide hospitalization and
treatment for the mentally ill who are too young to seek or obtain
help for themselves, the parental interest in and, indeed, legal
responsibility for obtaining help for mentally ill children regardless
of a child's recognition of such need, and the therapeutic desirability
of affording mental health care at an early age so as to enhance
the possibility of its success.
The need for separate rules for voluntary admission of children is
emphasized by the basic fact that, absent separate provisions tailored
to the needs of juveniles, unwilling children who are mentally ill
and in need of treatment but whose situations are not so aggravated
that they are "dangerous to themselves or others" would not be
accorded the needed in-patient treatment. This would be true despite
the intelligent and informed conclusions of "willing and responsible
family members" that a child is desperately in need of treatment
or his mental illness.
Finally, the Supreme Court unequivocally pronounced that
O'Connor is authority only for a situation involving "not involuntary
treatment but simply involuntary custodial confinement." See
opinion cited, footnote 10. Significantly, within this context, the
North Carolina Statutes require: (a) a judicial finding that the minor
is in need of further treatment at the treatment facility
(G.S. 122-56.7); (b) full protection of the minor's rights at the
judicial hearing and the mandated periodic judicial rehearings
(G.S. 122-56.7 and G.S. 122-58.7); (c) appropriate mental and
physicial treatment while the minor is in the facility
(G.S. 122-55.6); and (d) justification for any restriction upon the
exercise of the minor's statutorily guaranteed civil rights during the
treatment period (G.S. 122-55.14). Thus, it is obvious that the
statutory provision for treatment of minors under consideration here
is something totally different from the involuntary custodial
confinement addressed by the recent Supreme Court Decision.
-10-
Rufus L. Edmisten, Attorney General
William F. O'Connell
Assistant Attorney General
2.2 July 1975
Subject:
Requested by:
Questions:
Conclusions:
Mental Health; Voluntary Admissions;
Requirement for Rehearings for Minors and
Persons Adjudicated Non Compos Mentis;
Requirement for a Hearing Under
G.S. 122-56.7 When Patient in a
Treatment Facility Is Adjudicated Non
Compos Mentis
Mr. John L. Pinnix
Special Counsel
Broughton Hospital
(1) When a patient at a North Carolina
treatment facility falls within the
provisions of G.S. 122-56.7, are the
rehearings described in G.S. 122-58.11
required in order to retain him in the
treatment facility longer than ninety days?
(2) When a patient has been voluntarily
admitted to a North Carolina treatment
facility and subsequently is adjudicated
non compos mentis and a guardian
appointed under G.S. 35-3, must a hearing
be held in accordance with G.S. 122-56.7?
(1) Yes.
(2) Yes.
G.S. 122-56.7 requires that a district court hearing be held within
ten days after the voluntary admission to a treatment facility of
a minor or a person who has been adjudicated non compos mentis.
-11-
Subsection (c) of this statute further provides as follows:
"The initial hearing and all subsequent proceedings
shall be governed by the involuntary commitment
procedures of Chapter 122, Article 5A of the General
Statutes...." (Emphasis supplied)
This language makes it clear that the General Assembly intended
that the G.S. 122-58.11 requirement for periodic rehearings in
involuntary commitment proceedings be equally applicable to the
individuals described in G.S. 122-56.7.
G.S. 122-56.3 requires the discharge of any voluntarily admitted
patient within seventy-two hours of his written request therefor.
The obvious purpose behind G.S. 122-56.7 is to protect minors and
those adjudicated non compos mentis who have already been
admitted to a treatment facility from any unnecessary or unduly
prolonged detention. This protection can only be provided by
affording the same type of hearing to the patient who is adjudicated
non compos mentis after, rather than before, admission to a
treatment facility.
Rufus L. Edmisten, Attorney General
William F. O'Connell
Assistant Attorney General
2.2 July 1975
Subject: Department of Human Resources;
Appointment of Director of Youth Services
Requested by: Mr. David P. Dickey
Acting Director of Planning
Division of Youth Development
N. C. Department of Correction
Question: Must the procedures set forth in
G.S. 134-10 be followed in order to
appoint the Director of Youth Services?
-12-
Conclusion: Yes.
In Chapter 742, 1975 Session Laws, the General Assembly acted
to completely separate the "administration of training schools for
committed delinquents from the adult correction system."
G.S. 134-1. The General Assembly elected not to transfer the
Division of Youth Services (the component part of the Department
of Corrections which had previously been the responsible agency)
intact by a Type II transfer under G.S. 143A-6. Instead, the method
iof separation was via transfer of all physical facilities, equipment,
supplies, personnel, etc., to the Department of Human Resources.
See G.S. 134-6.
The new legislation then went on to provide for the areas and
method of operation of this function and delineated the
responsibilities for the operation. A Commission of Youth Services
iwas created to serve specified functions within the Department of
Human Resources. G.S. 134-3 through G.S. 134-9. Also created was
a position of Director of Youth Services, with the manner of
appointment to this position and the duties to be performed by
the incumbent being set forth with great specificity. See G.S. 134-10
through G.S. 134-14.
Apparently some consideration has been given as to whether the
prior Director of Youth Development could automatically be
xmsidered as transferred to the new position of Director of Youth
Services. In view of the method of transfer used by the General
Assembly and the specific selection procedures prescribed in
p.S. 134-10, that statute must be complied with in the appointment
bf an individual to this newly created position of Director of Youth
Services.
Rufus L. Edmisten, Attorney General
William F. O'Connell
Assistant Attorney General
3 July 1975
ubject: Health; Ground Absorption Sewage
Disposal System Act of 1973; Article 13C
-13-
Requested by:
Question:
of Chapter 130; Adoption of Rules and
Regulations by Local Boards of Health;
Effect of Rules and Regulations Adopted
by the Commission for Health Services
Mr. Howard B. Campbell, M. P. H.
Director
Pasquotank-Perquimans-Camden-Chowan
District Health Department
May the rules and regulations of a local!
board of health permit the installation of
a septic tank system or an alternative
ground absorption sewage disposal system
in soil which has been determined to be
"unsuitable"?
Conclusion: The rules and regulations of a local board
of health may permit the installation of aj
septic tank system or an alternative ground
absorption sewage disposal system in soil
classified as "unsuitable" if such 1
installation will not have a detrimental
effect on the public health. However, after
the effective date of the rules and
regulations of the Commission for Health I
Services governing sewage disposal, the
provisions of such rules may apply.
The General Assembly declared in the preamble to the Ground:
Absorption Sewage Disposal System Act of 1 973 (codified as Article
13C of the General Statutes' Chapter 130) that:
"...continued installation, at a rapidly and constantly
accelerating rate, of septic tanks and other types of
ground absorption sewage disposal systems in a faulty
or improper manner and in areas where unsuitable soil
and population density adversely affect the efficiency
and functioning of these systems has a detrimental
effect on the public health through contamination of
the groundwater supply....the General Assembly
14-
intends hereby to insure the regulation of ground
absorption sewage disposal systems so that such
systems may continue to be used, where appropriate,
without jeopardizing the public health."
The General Assembly provided in section 5(b) of the Act (codified
as G.S. 130-1 66.25(b)) that:
"The local health department shall issue an
improvements permit authorizing work to proceed and
the use of a septic tank or other ground absorption
disposal system when it has determined, after a field
investigation of the area, including such factors as
character and porosity of soil, percolation rate,
topography, depth to water table and rock or other
impervious formations and location or proposed
location of any water supply wells, that such a system
can be installed at the site in compliance with the rules
and regulations of the local board of health governing
such installations;...."
..
The ground Absorption Sewage Disposal Act recognizes that ground
- ibsorption sewage disposal can be rendered ecologically safe" and
l"will continue to be necessary for the adequate and economic
Ihousing of an expanding population," provides a procedure for
obtaining an improvements permit and a certificate of completion,
stipulates the factors to be considered before issuance of an
Improvements permit, and entrusts issuance of the improvements
permit to the local health department upon compliance with the
i§ules and regulations of the local board of health. Therefore, the
-egulation of the installation and use of ground absorption sewage
jlisposal systems rests ultimately on the rules and regulations of the
local board of health. The question presented herein is whether or
hot State law requires the rules and regulations of local boards of
lealth concerning ground absorption sewage disposal systems to
provide a minimum criteria for issuance of an improvements permit
iind, ultimately, whether or not State law requires the local boards
pf health to adopt rules and regulations in the first instance
concerning ground absorption sewage disposal systems.
j.S. 130-17 sets forth the powers and duties of local boards of
lealth. "The local boards of health shall have the immediate care
-15-
and responsibility of the health interests of their city, county or
district." "The local boards of health shall make such rules and
regulations, not inconsistent with law, as are necessary to protect
and advance the public health." The quoted provisions of
G.S. 130-17 make it clear that the local boards of health are given
the primary duty to protect the public health within their
jurisdictions and the power to make rules and regulations to fulfill
this duty. The second quoted provision not only confers but also
mandates the exercise of this rule-making authority "when necessary
to protect and advance the public health." The delegation of any
rule-making authority confers the discretion to adopt rules and
regulations in accordance with standards provided by the legislature.
The discretion of a local board of health under G.S. 130-17 pertains
to, first, whether the public health requires the adoption of rules
and regulations on a particular matter and, second, to what extent
does the public health require regulation of the particular matter.
If the protection and the advancement of the public health require
regulation of a particular matter, then the local board of health
shall make such rules and regulations.
The General Assembly has found that continued installation of
ground absorption sewage disposal systems in a faulty or improper
manner or in areas of unsuitable soil or population density has a;
detrimental effect on the public health. The General Assembly
expressed its intent that the Ground Absorption Sewage Disposal
Act insure the regulation of ground absorption sewage disposa
systems. This regulation, as noted previously, is predicated on rules
and regulations adopted by the local boards of health. Consequently
it is the opinion of this Office that the Ground Absorption Sewage
Disposal System Act of 1973 and the provisions of G.S. 130-n
mandate the adoption of rules and regulations concerning ground
absorption sewage disposal systems. Such rules and regulations have
been found by the General Assembly to be necessary to protect
and advance the public health.
The question remains, however, whether the rules and regulations
adopted by the local board of health, may permit the installatior
of a septic tank system in a soil classified as "unsuitable." It ha:
been noted that the authority and responsibility to adopt regulation
includes the discretion to determine the extent and content of th<
regulation adopted. The Act stipulates the factors to be considered
-16-
establishes the protection of the public health as the polar star for
the regulations, but entrusts specific determinations to the local
lealth department in accordance with the rules and regulations of
the local board of health. Therefore, the local board of health,
:hrough its rules and regulations, may determine that the installation
}f a septic tank system or an alternative ground absorption sewage
lisposal system in a soil classified as "unsuitable is permissible when
he application of the latest advancements in sanitation engineering
md the results of appropriate engineering, hydrogeological and soil
tudies on the particular tract of land demonstrate that the operation
)f the ground absorption sewage disposal system will satisfy the
;eneral requirements of the rules and regulations and will not have
. detrimental effect on the public health. This judgment has been
ntrusted to the discretion of the local boards of health.
must be noted that the Act in 5(b) (codified as
!j.S. 130-1 66.25(b)) provides that it "does not limit or interfere
rith the authority of the Department of Human Resources to adopt
nd enforce reasonable rules and regulations under authority of
ij.S. 130-160." G.S. 130-160 authorizes the Commission for Health
lervices to adopt rules and regulations governing sewage disposal
ystems with 3,000 gallons or less design capacity.
'he Commission for Health Services has recently exercised the
uthority conferred by G.S. 130-160 and adopted Rules and
Regulations Governing the Disposal of Sewage from any Residence,
dace of Business or Place of Public Assembly in North Carolina.
Tiese rules and regulations will become effective, after adoption
fly the Environmental Management Commission, on September 1,
'975, Part I, Section IVB3 of the rules and regulations provide:
"Sites classified as UNSUITABLE shall not be used
for soil absorption disposal systems, unless engineering,
hydrologic, and soil studies indicate to the State or
local agency that a suitable septic tank system or a
suitable alternate system can reasonably be expected
to function satisfactory."
nijr.S. 130-1 7(b) provides that the rules and regulations of local
dfOards of health may be more stringent, but not less stringent, than
lose of the Commission for Health Services where an emergency
-17-
or a peculiar local condition or circumstance so require; otherwise
the rules and regulations of the Commission for Health Service
prevail where there is a conflict between rules of the Commission
and rules of the local board of health. Therefore, it is apparen
that, except where an emergency or a peculiar local condition o
circumstance exists, the provisions of Part I, Section IVB3 wil
prevail over conflicting local rules. These provisions will also appl
where local rules do not address the question. Consequently, afte
the effective date of the new rules and regulations of the Commissioi
for Health Services, the provisions of Part I, Section IVB3 wil
except in limited instances, determine when a septic tank syster
or an alternative ground absorption sewage disposal system may b
installed in soils classified as "unsuitable."
Rufus L. Edmisten, Attorney General
Robert R. Reilly
Associate Attorney
23 July 1975
Subject:
Requested by:
Question:
Conclusion:
'ii-
Mental Health; Mental Health Clinia
Expenditure of Fees Collected for Service
by Local Mental Health Clinics
Mr. R. J. Bickel
Assistant Director for Administration
Division of Mental Health Services
N. C. Department of Human ResourcesWei
Is there any limitation on the expenditui
of funds which have been collected as fetf
for services rendered by local mental healt
clinics?
Fees for services rendered which have beep
collected by local mental health clinics ma
be expended only for the fiscal operatic
of the local mental health authority.
•18-
ij.S. 122-35.10 provides for the collection of fees for services
endered by local mental health clinics. The duty and obligation
p effect this type of collection and the legislative intent behind
Jie statutory requirements for the collections have been discussed
n a previous opinion of this Office. See opinion of the Attorney
jeneral to Mr. R. J. Bickel, Assistant Director for Administration,
)ivision of Mental Health Services, dated 13 May 1975, 44 N.C.A.G.
28.
| addressing the subject of the disposition of the fees which are
ollected, G.S. 122-35.10 provides:
"The fees to be charged are to be fixed by the local
mental health authority and all funds so collected shall
be utilized for the fiscal operation of the local mental
health authority."
his unequivocal language permits no doubt as to circumscribed
tnits placed upon the use of the fees collected by local mental
salth clinics.
Rufus L. Edmisten, Attorney General
William F. O'Connell
Assistant Attorney General
August 1975
abject:
squested by:
nluestions
in
iti l
Motor Vehicles; Drivers' Licenses; Limited
Driving Privilege; Effective Date, Cases to
Which Act Applies
Honorable William H. McMillan
N. C. House of Representatives
(1) Does this act apply to offenses
committed before its effective date in
which the trial is held after the effective
date?
-19-
(2) Does the act apply to cases in whicl
the offense occurred and the trial was heh
before the effective date and in which n(
appeal was taken?
(3) Does the act apply to cases when
the offense occurred and trial was held ii
the district court before the effective date
and in which an appeal to the superioj
court was pending on the effective date o\
the act?
1
(4) Does the act apply to cases in whicl) m
the offense occurred, trial in the district ii
court and in the superior court were hel<i
before the effective date, and in which ar
appeal to the Court of Appeals was pendin,(|
on the effective date?
Conclusions: (1) The act applies to offense*
committed before July 1, 1975, in whicij
trial is held after July 1, 1975, and suet
defendants are eligible to receive a limited
driving privilege if the trial judge, in hi
discretion, determines to allow it.
r.
(2) The act does not apply to cases i:
which the offense occurred and fine
judgment was entered before July 1, 197f
with no appeal being taken and sue.
persons are not eligible to receive a limite
driving privilege.
(3) The act applies to offense
committed and tried in the inferior com
prior to July 2, 1975, but which ar
pending appeal to the superior court o!
July 1, 1975, and such persons are eligibl
to receive a limited driving privilege if th
superior court judge in his discretior
determines to allow it.
-2.0-
(4) The act will not apply to cases where
the offense and trial occurred prior to July
1, 1975, which are pending on appeal to
the Court of Appeals or the Supreme Court
unless the Appellate Division reverses the
conviction and remands the case to the
superior court for a new trial.
'hapter 763, Session Laws of 1975, authorizes trial judges to allow,
S a condition of a suspended sentence, a limited driving privilege
persons convicted of a first offense of violating
C.G.S. 20-1 6.1 (a). The allowance of such a limited privilege is
lot mandatory but is in the discretion of the trial judge. The
Infective date of the act was July 1, 1975. It contains no provision
tepecting pending litigation.
Hie revocation of driving privilege is not a part of the punishment
|>r driving while under the influence. Harrell v. Scheidt, 243 N.C.
B5 (1956), Joyner v. Garrett, Comr. of Motor Vehicles, 279 N.C.
126 (1971). Likewise the allowance of a limited driving privilege
fould not appear to be a part of the punishment for the offense.
Nonetheless these matters are direct effects of the conviction and
I closely related to it that the principles of State v. Pardon, 272
l.C. 72 (1967) are considered analogous. Therein it is said:
"Statutes are frequently adopted which change
the degree and kind of punishment to be imposed for
a criminal act.
The legislature may always remove a burden
imposed upon citizens for State purposes....
An amendatory act which imposes a lighter
punishment can be constitutionally applied to acts
committed before its passage.
-21-
When the Legislature amends a statute so as to lessen
the punishment it has obviously expressly determined
that its former penalty was too severe and that a
lighter punishment is proper as punishment for the
commission of the prohibited act. It is an inevitable
inference that the Legislature must have intended that
the new statute imposing the new lighter penalty now
deemed to be sufficient should apply to every case
to which it constitutionally could apply....
* * *
'As to a mitigation of penalties, then, it is safe to
assume, as the modern rule does, that it was the
legislative design that the lighter penalty should be
imposed in all cases that subsequently reach the
courts."'
No court has the authority to change or modify its judgment aft'
the terms in which it was rendered has expired. State v. WarreA
92 N.C. 825 (1885), State v. McLeod, 222 N.C. 142 {\9A\);Sta\
v. Lawrence, 264 N.C. 220 (1965); N.C.A.G. Opinion, 12/18/6
Ralph L. Howland, North Carolina Commissioner of Motor Vehicle
In State v. Pardon, 272 N.C. 72 (1967), it is said:
"After a defendant, who did not appeal, has begun
serving his sentence, a change or repeal of the law
under which he was convicted does not affect his
sentence absent a retrospective provision in the
statute."
Chapter 763 contains no retrospective provision.
iii
An appeal from an inferior court to the superior court nullifies t] id
action of the inferior court; it "completely annuls" the judgmeifiitli
State v. Goff, 205 N.C. 545 (1933); State v. Meadows, 234 N.
657 (1951); State v. Broome, 269 N.C. 661 (1967); State v. Stille
4 N.C. App. 638 (1969); State v. McCluney, 280 N.C. 404 (197:!
The term "conviction" in the motor vehicle laws means a "fir
conviction". G.S. 20-24(c). In this situation, there is no fir
-22-
:onviction and the superior court is not restricted in its actions in
:he matter. However, the jurisdiction of the inferior court which
•endered judgment is at an end and it cannot alter its judgment
n the matter.
Hie appeal to the Appellate Division ousts the jurisdiction of the
uperior court and the superior court can issue no substantive orders
in the matter so long as a court of the Appellate Division retains
urisdiction. Clark v. Cagle, 226 N.C. 230 (1946).
f the Appellate Division affirms the judgment appealed from, the
uperior court is thereafter customarily powerless to enter any
udgment other than that affirmed. The decision of the Appellate
)ivision effectively ends the matter although it is the custom to
nter a pro forma judgment in superior court after certification of
he decision; however, in light of the holding in State v. Spencer,
;76 N.C. 535 (1970), it would appear that a request could be made
[Upon entry of the pro forma judgment in the trial court for a limited
n riving permit as it would be to the benefit of the licensee.
"It is the practice of the superior court to enter
judgment in accordance with the opinion of this
Court-a practice which should be continued in the
interest of clarity, continuity, and for the convenience
of those who may examine the records thereafter-,
but the efficacy of our mandate does not depend upon
the entry of an order by the court below. Where such
an order has been entered it 'neither added to nor
took from the rights of either party.' Strickland v.
Jackson, 260 N.C. 190, 191, 132 S.E. 2d 338, 339."
D & W. Inc., v. Charlotte, 268 N.C. 720 (1966).
on the other hand, the conviction is reversed, and a new trial
granted, the defendant, if convicted at the new trial, would be
ititled to the benefit of the act, if in the discretion of the trial
dge, he is considered deserving.
Rufus L. Edmisten, Attorney General
William W. Melvin
Assistant Attorney General
-23-
5 August 1975
Subject:
Requested by:
Question:
Conclusion:
Social Services; Adoptions; Chapter 335 o
the 1975 Session Laws; Act to Prohibit tht
Buying and Selling of Children foi
Adoption and to Prohibit Advertisement!
Soliciting Children for Adoption
Dr. Renee P. Hill, Director
Division of Social Services
Department of Human Resources
Under Chapter 335 of the 1975 Sessior1
Laws, effective July 1, 1975, prohibiting
the buying and selling of children foil
adoption, may prospective adoptive parents
pay the transportation expenses to Nortr'
Carolina as well as all medical costs
incident to the birth of the child of ari
expectant mother residing in another states
who is considering placing her baby foil
adoption with this couple?
Prospective adoptive parents who entei< i
into the above type of financial:
arrangement with an expectant mothei
pursuant to an independent adoption
placement expressly violate the provisions
of Section 1, Chapter 335 of the Sessionii
Laws of 1975 prohibiting the buying and!
selling of children for adoption.
n
Section 1 of Chapter 335 of the 1975 Session Laws, effective Jul)
1, 1975, provides:
"No person, agency, association, corporation,
institution, society or other organization, except a
licensed child-placing agency as defined by
G.S. 48-2(2), or a county department of social
services, shall offer or give, charge or accept any fee,
compensation, consideration or thing of value for
-24-
receiving or placing, arranging the placement of, or
assisting in placing or arranging the placement of, any
child for adoption..../!^ person who violates any
provision of this section shall be guilty of a
misdemeanor, and upon conviction or plea of guilty
shall be fined or imprisoned or both at the discretion
of the court.... " (Emphasis supplied)
The specific factual situation posed involves an expectant mother,
residing in another state, who is considering placing her baby for
adoption independently with a North Carolina family. The
prospective adoptive parents are proposing to pay for the woman's
transportation to North Carolina as well as her room, board, and
medical care after she arrives. The inquiry is as to whether this
arrangement would fall within the purview of the proscription
against buying and selling children for adoption as set forth in
Chapter 335.
In our opinion the type of arrangement contemplated in this case
is clearly violative of the provisions of Section 1 of Chapter 335.
Is there any real doubt that the prospective adoptive parents are
offering or giving compensation, consideration or a thing of value
ito the expectant mother for receiving her child for adoption? We
think not.
5 August 1975
Subject:
Requested by:
Rufus L. Edmisten, Attorney General
William Woodward Webb
Assistant Attorney General
Mental Health; Voluntary Admissions;
Release From Treatment Facility of a
Minor or an Incompetent Prior to or After
a Judicial Hearing Under G.S. 122-56.7
Mr. R. J. Bickel
Assistant Director for Administration
Division of Mental Health Services
N. C. Department of Human Resources
-25-
Questions: In the case of a child (or person
adjudicated non compos mentis) who is
admitted to a treatment facility pursuant
to G.S. 122-56.5:
(1) Can the parent or guardian request
and obtain the release of the patient prior
to the hearing required by G.S. 122-56.7?
(2) Can the parent or guardian request
and obtain the release of the patient after
the hearing under G.S. 122-56.5 when the
court has determined that the patient is
mentally ill or inebriate and is in need of
further treatment at the treatment facility?
(3) If the patient is released from the
treatment facility before the hearing under
j
G.S. 122-56.5 must the hearing still be
conducted?
Conclusions: In the situations described:
(1) The parent or guardian can request
and obtain the release of the patient.
(2) The parent or guardian cannot
obtain the release of the patient contrary
to the court order.
(3) The hearing is not required to be
convened.
!
Article 4 of Chapter 122 of the General Statutes permits the
voluntary admission of a minor or an incompetent into a North
Carolina treatment facility upon application by responsible parent,
guardian, etc. In these instances, however, G.S. 122-56.7 requires
a judicial hearing within ten days of admission. This hearing is
patently designed to protect the minor or incompetent from being
improperly restrained in the treatment facility if that degree of
restraint is not therapeutically necessary.
-26-
Since the parent or guardian, as applicable, is still the person
basically responsible for the welfare of the patient, he may authorize
the release of the patient prior to the judicial hearing. Patently,
in that situation, since there is no longer any restraint imposed upon
the patient, the question of the propriety of the restraint is moot;
thus, no hearing is required.
However, once the court has conducted a hearing and has ordered
inpatient treatment, the court order is controlling on that question.
Thereafter, discharge of the patient from the treatment facility is
governed by the provisions of Article 5 A, Chapter 122.
Rufus L. Edmisten, Attorney General
William F. O'Connell
Assistant Attorney General
5 August 1975
Subject
Mental Health; Involuntary Commitment;
Interstate Compact on Mental Health;
Transfer of Mental Patient to a State Not
Having Same Due Process Requirements As
North Carolina
Requested by:
Question
Conclusion
Mr. John L. Pinnix
Special Counsel
Broughton Hospital
Under G.S. 122-99 (Interstate Compact on
Mental Health), may the State of North
Carolina constitutionally transfer an
inpatient involuntarily committed under
the provisions of G.S. 122-58.1 through
G.S. 122-58.18 to another state not having
equivalent due process safeguards in the
form of requirements for mandatory,
periodic judicial rehearings?
The transfer described is not prohibited
although the existence of adequate due
-27-
process safeguards in the receiving state
should be an important factor for
consideration in determining the
appropriateness of the transfer of the
patient.
G.S. 122-58.1 through G.S. 122-58.18 provide for the involuntary
commitment in North Carolina of individuals who are mentally ill
or inebriates and who are dangerous to themselves or others; among
other statutorily provided due process safeguards are the
requirements for regular and periodic rehearings as a prerequisite
to continuing these individuals in an inpatient status. Through the
Interstate Compact on mental health (codified as G.S. 122-99)
North Carolina has agreed with other subscribing states as to the
basis rules governing the interstate transfer of patients where this
action is appropriate.
The self pronounced intent and purpose behind the Compact is as
follows:
"The party states find that the proper and
expeditious treatment of the mentally ill and mentally
deficient can be facilitated by cooperative action, to
the benefit of the patients, their families, and society
as a whole.... Consequently, it is the purpose of this
Compact and of the party states to provide the
necessary legal basis for the institutionalization or
other appropriate care and treatment of the mentally
ill and mentally deficient under a system that
recognizes the paramount importance of patient
welfare and to establish the responsibilities of the
party states in terms of such welfare." (Article I of
the Compact).
In addressing the subject of transfer of persons needing inpatient
treatment, Article III of the Compact contains the following
significant language:
"...any patient may be transferred to an institution
in another state whenever there are factors based upon
clinical determinations indicating that the care and
-28-
treatment of said patient would be facilitated or
improved thereby.... The factors referred to in this
paragraph shall include the patient's full record with
due regard for the location of the patient's family,
character of the illness and probable duration thereof,
and such other factors as shall be considered
appropriate."
Nowhere in the Compact or in any of the General Statutes of North
Carolina is there a requirement that the receiving state must have
statutes identical to or equivalent to those of the sending state. It
would appear that the usual situation wherein consideration is given
to an interstate transfer involves a proposal to transfer the patient
to his state of permanent residence or to an area where he will
be near family or friends. In weighing the pros and cons of an
individual transfer, the therapeutic value of the transfer, the
projected duration of the inpatient status, and the due process
protection afforded the patient in the receiving state are all valid
factors for consideration in arriving at a decision as to the course
which will be most likely to insure the particular patient's welfare.
Rufus L. Edmisten, Attorney General
William F. O'Connell
Assistant Attorney General
8 August 1975
Subject
Requested by:
Question
Prisons and Prisoners; Paroles; Parole
Eligibility
Mr. Jack Seism, Chairman
North Carolina Parole Commission
May the Parole Commission grant parole to
persons who have served less than
one-fourth of their sentence?
Conclusion: No.
N.C.G.S. 148-58 provides:
-2.9-
"All prisoners shall be eligible to have their cases
considered for parole when they have served a fourth
of their sentence, if their sentence is determinate, and
a fourth of their minimum sentence, if their sentence
is indeterminate; provided, that any prisoner serving
sentence for life shall be eligible for such consideration
when he has served 70 years of his sentence. Nothing
in this section shall be construed as making mandatory
the release of any prisoner on parole, but shall be
construed as only guaranteeing to every prisoner a
review and consideration of his case upon its merits."
If the Legislature intended that the Parole Commission could release
an inmate at any time after commitment, why did it provide for
determinate and indeterminate sentences, and why did it provide
for eligibility upon service of a fourth of a minimum sentence, or
after twenty years of a life sentence, which is a fourth of the
eighty -year definition of a life sentence, G.S. 14-2? If the
construction were adopted that the Parole Commission could release
an inmate at any time after commitment, all sentences would be
indeterminate - one day to the maximum imposed by the court,
and there would be no reason for a minimum sentence, and the
sentencing court would, in effect, be imposing a maximum sentence
which would automatically become indeterminate under the
construction proposed in this inquiry.
The reason and language of G.S. 148-58 can only point to one
conclusion, and that is that a prisoner must serve one fourth of
his sentence before the Parole Commission has jurisdiction over his
person and the authority to release him on parole.
We are therefore of the opinion that G.S. 148-58 grants the Parole
Commission the power to parole inmates only after the inmate has
served one fourth of his sentence.
Rufus L. Edmisten, Attorney General
Jacob L. Safron
Special Deputy Attorney General
-30-
8 August 1975
Subject
Requested by:
Question
Conclusion:
Motor Vehicles; Registration; Transfer of
Title
Mr. E. B. Borden Parker
County Attorney
Wayne County
May a title of a motor vehicle be
transferred without the purchaser applying
to the Department of Motor Vehicles for
a new certificate of title?
Yes.
The 1963 amendment was a complete rewrite of G.S. 20-72(b). The
decisions of Insurance Company v. Insurance Company, 276 NC 243,
172 SE 2d 55 (1970) and Younts v. Insurance Company, 281 NC
582, 189 SE 2d 137 (1972) involve the interpretation of the statute
as it was before 1963. It was noted in both cases, however, that
the 1963 amendment changed the requirements.
Specifically, the 1963 amendment deleted the requirement that
application for certificate of title be made by the transferee before
ownership to the vehicle passes. Insurance Co. v. Hayes, 276 NC
620, 174 SE 2d 511 (1970). No further amendments have affected
this change. Thus, a title of a motor vehicle may pass without making
an application to the Department of Motor Vehicles for a new
certificate of title.
It should be noted that G.S. 20-73 still requires a new owner to
secure a new certificate of title and that G.S. 20-74 provides a
penalty for failure to do so. The 1963 amendment to G.S. 20-72(b)
only affected the requirements for transfer of title and did not drop
the requirement entirely.
Rufus L. Edmisten, Attorney General
William W. Melvin
Special Deputy Attorney General
-31-
8 August 1975
Subject:
Requested by:
Question:
Conclusion:
Motor Vehicles; Equipment; Windshields
and Windows; Use of One-way Visibility
Glass
Colonel E. W. Jones
Commander
State Highway Patrol
May a substance be applied to the
windshields and windows of motor vehicles
so as to result in one-way vision; i.e., may
be seen through from the inside out but
not from the outside- in?
No. Such a substance would be in violation
of both G.S. 20-1 27(a) and
G.S. 20-1 27(c). Subsection (a) prohibits all
non-transparent material upon the
windshield and the rear and side windows
of any motor vehicle unless it is required
by law or approved by the Commissioner
of Motor Vehicles. In order for the material
to be classified as transparent, it would
have to be seen through from both sides
of the glass. Subsection (c) also prohibits
the use of such a substance. It requires the
motor vehicle glass to be free from
discoloration which would impair the
driver's vision or create a hazard. The said
substance, having the property of an
ordinary mirror when a light inside the
motor vehicle is turned on, can prevent the
driver from seeing outside of his vehicle.
Under either of these subsections of G.S. 20-127, the substance
which will allow only one-way visibility cannot be applied to the
windshield or other windows of a motor vehicle unless, under
subsection (a), it is approved by the Commissioner of Motor
Vehicles.
-32-
Rufus L. Edmisten, Attorney General
William W. Melvin
Special Deputy Attorney General
13 August 1975
Subject
Requested by:
Questions:
Conclusions:
Criminal Law; Applicability of
G.S. 14-269.2 to Private Security Guards
Employed by Institutions of Higher
Education and Secondary Schools
Mr. Jerry Adams, Administrator
Private Protective Services
State Bureau of Investigation
(1) Does G.S. 14-269.2 prohibit private
security guards employed by the governing
board of an institution of higher education
from carrying weapons on the grounds of
the institution while acting in the
performance of their duties?
(2) Does G.S. 14-269.2 prohibit private
security guards employed by the board of
education of a secondary school system
from carrying weapons on the school
grounds while acting in the performance of
their duties?
(1) Private security guards employed by
an institution of higher education are
specifically exempt from the prohibition in
G.S. 14-269.2 against carrying weapons on
school grounds.
(2) Private security guards employed by
secondary schools are exempt from the
prohibition in G.S. 14-269.2 against
carrying weapons on school grounds if
-33-
commissioned as special policemen
pursuant to Chapter 74A of the General
Statutes.
Many institutions of higher education and some secondary schools
employ private security guards to protect their buildings and
grounds. These guards often carry weapons. The question has arisen
as to whether such guards are prohibited by G.S. 14-269.2 from
carrying weapons while carrying out their duties.
G.S. 14-269.2 provides, in pertinent part:
"It shall be unlawful for any person to possess, or
carry, whether openly or concealed, any gun,...bowie
knife,. ..blackjack, ...or any other weapon of like
kind, ...in any public or private school building or bus,
on any public or private school campus, grounds,
recreation area, athletic field, or other property
owned, used or operated by any board of education,
school, college, or university board of trustees or
directors for the administration of any public or
private educational institution. ...This section shall not
apply to the following persons: ...officers of the State,
or of any county, city, or town, charged with the
execution of the laws of the State, when acting in
the discharge of their official duties, ...and any private
police employed by the administration or board of
trustees of any public or private institution of higher
education when acting in discharge of their duties."
The answer in regard to security guards employed by institutions
of higher education is clear. Private security guards employed by
an institution of higher education, while acting in the discharge of
their duties, are specifically exempted by the terms of the statute
from the prohibition against carrying a weapon onto the grounds.
A more difficult problem is presented in regard to security guards
employed by secondary schools. The exemption in the statute for
educational institutions is specifically limited to guards employed
by an institution of higher education. There is no exemption found
anywhere in the statute for guards employed by the board of
-34-
education of a secondary school system. Further, there is nothing
in the language of the statute which would make it susceptible to
an interpretation or construction permitting guards employed by the
secondary schools to carry weapons. Moore v. Jones, 76 N.C. 187;
State v. Whitehurst, 212 N.C. 300, 193 S.E. 657; 7 Strong's N.C
Index 2d, Statutes, Section 5. Thus, at first glance, it would appear
that private security guards employed by the board of education
of a secondary school system are prohibited from carrying any
weapon on school grounds.
We, however, find it difficult to believe that such an inconsistency
was intended by the General Assembly. In examining the General
Statutes, we believe that this inconsistency is remedied by construing
the exemption in G.S. 14-269.2 for "officers of the State or any
county, city or town charged with the execution of the laws of
the State" in conjunction with the provisions of Chapter 74A of
the General Statutes. G.S. 74A-1 specifically provides that an
"educational institution" may apply to the Governor for the
commissioning of persons to act as policemen for it. G.S. 74A-2
defines the powers and duties of such policemen. Subsection (b)
provides
"Such policemen, while in the performance of the
duties of their employment, shall severally possess all
the powers of municipal and county police officers..."
It is the opinion of this Office that security guards employed by
the board of education of a secondary school and commissioned
by the Governor pursuant to the provisions of Chapter 74A would
be "officers of the State, ...charged with the execution of the laws
of the State,..." within the meaning of G.S. 14-269.2 and, thus,
exempt from the prohibitions of the statute.
To summarize, private security guards employed by an institution
of higher education are exempt from the prohibitions of
G.S. 14-269.2. Private security guards employed by the board of
education of a secondary school system are exempt from the
prohibition contained in that statute provided such security guards
are commissioned by the Governor pursuant to Chapter 74A of the
General Statutes. We must note, however, that a security guard
employed by the board of education of a secondary school without
-35-
being commissioned pursuant to Chapter 74A and carrying a weapon
on school grounds would appear to be in violation of G.S. 14-269.2.
Rufus L. Edmisten, Attorney General
Edwin M. Speas, Jr.
Special Deputy Attorney General
15 August 1975
Subject: Social Services; Authority of Social
Services Commission to Promulgate
Standards for Selection of County Social
Services Board Members; Constitutionality
of Social Services Commission Standard
Number 5
Requested by:
Questions:
Ms. Flora R. Garrett
Chairman
Orange County Board of Commissioners
( 1 ) Under what statutory authority does
the Social Services Commission adopt and
enforce standards for selection of county
social services board members?
(2) Does Standard Number 5 of the
Social Services Commission, providing that,
"(B)oard members shall not have any near
relatives receiving financial assistance
through the county department of social
services on which board they serve..." run
afoul of either the North Carolina or
United States Constitution?
Conclusions: (1) The authority of the Social Services
Commission to adopt and enforce
standards for the selection of county social
services board members is derived from
G.S. 143B-153.
-36-
(2) Standard Number 5 of the Social
Services Commission does not run afoul of
either the North Carolina or the United
States Constitution.
The authority of the Social Services Commission to promulgate
standards for the selection of county social services board members
is derived from its power and duty under G.S. 143B-153 "...to adopt
rules and regulations to be followed in the conduct of the State's
social service programs..." Since the county boards are entrusted
with the responsibility of establishing county policies for the
programs of public assistance established by Chapter 108 of the
General Statutes (G.S. 108-7), it is the opinion of this Office that
the Social Services Commission has legitimately exercised its power
to determine who may set county policy in the administration of
the State's social services programs.
However, it is patent that the standards for the selection of county
social services board members may not violate provisions of either
the State or federal constitution. It is suggested that Standard
Number 5 of the Social Services Commission providing that "(B)oard
members shall not have any near relatives receiving financial
assistance through the county departments of social services on
which board they serve. ('Near relatives are defined as father,
mother, brother, sister, husband or wife, son, daughter, half brother
and half sister.')" denies a segment of the county population of
equal protection of the laws in violation of the Fourteenth
Amendment to the Constitution of the United States and Section
19 of Article I of the Constitution of North Carolina. By now it
is axiomatic that social and economic classificatory schemes must
be rationally related to a valid State interest in order to avoid
conflict with the Equal Protection Clause. Reed v. Reed, 404 U.
S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225 (1971) citing floater Guano
Co. v. Virginia, 253 U. S. 412, 40 S. Ct. 560, 64 L. Ed. 989 (1920).
The legitimate State objective in this case is not only the avoidance
of conflict of interest but also the avoidance of impropriety, and
also the appearance thereof, in the administration of the programs
of public assistance in North Carolina. In the judgment of this Office,
Standard Number 5 of the Social Services Commission furthers and
is rationally connected to this valid State goal. We submit that
the reasons advanced by the Supreme Court of the United States
-37-
in upholding the constitutionality of the Hatch Act, United States
Civil Service Commission v. National Association of Letter Carriers,
413 U. S. 548, 93 S. Ct. 2880, 37 L. Ed. 2d 796 (1973), are
analogous to the potential situation faced by employees of the
county department of social services in attempting to handle the
cases of recipients who are related to county board members:
"...the goal that employment and advancement in the
government service not depend on political
performance. ..that government employees be. ..free
from pressure and from express or tacit invitation to
vote in a certain way or to perform political chores
in order to curry favor with their superiors rather than
to act out their own beliefs."
Thus, while a board member with a near relative receiving public
assistance might disqualify himself from reviewing his relative's
public assistance file, he is powerless to eliminate the pervasive
influence his presence on the board will have on caseworkers,
eligibility specialists, and even fellow board members in dealing with
that relative's case. Accordingly, we would contend that Standard
Number 5 is constitutionally defensible under equal protection
analysis.
Finally, this Office is of the opinion that Sections 7 and 8 of Article
VI of the Constitution of North Carolina present no bar to the
continued enforcement of Standard Number 5.
Rufus L. Edmisten, Attorney General
William Woodward Webb
Assistant Attorney General
19 August 1975
Subject: Public Contracts; Counties; Competitive
Bidding; Additional Work
-38-
Requested by:
Question:
Conclusion:
Mr. James R. Hood
County Attorney
Jones County
May the Board of County Commissioners
negotiate for the extension of a water
distribution system estimated to cost
one-half million dollars, with the
contractor now performing work under a
contract awarded pursuant to
G.S. 143-129 for the installation of a
county water distribution system?
No. G.S. 143-129 requires public
contracts for construction and repair
estimated to cost more than ten thousand
dollars to be awarded to the lowest
responsible bidder after public advertising.
Such statute is regarded as rendering invalid
and unenforceable subsequent agreements
to pay one to whom a public contract has
been duly awarded additional
compensation for such extra work not
included in the original contract.
In a letter of August 4, 1975, the Jones County Attorney advises
that the Board of County Commissioners of Jones County has
entered into a contract for the construction of distribution lines,
treatment facilities, etc. for a county water system after advertising
for bids in accordance with the provisions of G.S. 143-129. The
county now finds that by reason of the bid being less than the
engineer's estimate, that they have funds available for an additional
extension of the county water system in the amount of $550,000.
The contractor awarded the initial contract has offered to construct
the planned extension estimated to cost about $550,000 at the
contract unit price of the existing contract. The Commissioners are
of the opinion that this price would be less than the cost if the
contract were let after public advertising pursuant to G.S. 143-129.
The Commissioners requested an opinion as to whether or not they
can negotiate an extension of the water system with the initial
contract or avoid public advertising for bids.
-39-
G.S. 143-129 requires contracts for the construction and repair
estimated to cost more than $10,000 to be awarded to the lowest
responsible bidder after public advertising as provided in that section.
A contract made in contravention of the statute is ultra vires and
void. Raynor v. Commissioners for Town of Louisburg, 220 N. C.
348.
Statutes requiring the letting of public contracts to the lowest bidder
are regarded as rendering invalid and unenforceable subsequent
agreements to pay one to whom a public contract has been duly
awarded additional compensation for extras or additional labor and
materials not included in the original contract, at least where the
additional compensation exceeds the amount for which the public
contracts may be made without competitive bidding. Annotation:
Public Contracts - Extras. 135 ALR 1266; Teer v. State Highway
Commission, 4 N. C. App. 126, 133. Therefore, this Office is of
the opinion that a contract for the extension of the county water
system beyond that called for in the original contract awarded can
only be entered into after competitive bidding in conformance with
the provisions of G.S. 143-129.
Rufus L. Edmisten, Attorney General
Eugene A. Smith
Special Deputy Attorney General
19 August 1975
Subject: Taxation; Franchise Taxes; Public Service
Companies; Distributions of Tax to
Municipalities; Sales Within a Municipality;
G.S. 105-116
Requested by:
Question:
Mr. John Hugh Williams
Attorney for City of Concord
Board of Light & Water Commissioners
Where a power company delivers electricity
to a city-owned substation located outside
of the municipal limits of the city, which
-40-
the city in turn distributes through its
distribution system to customers within the
city, is the sale of electricity to the city
a "sale within the municipality", so as to
entitle it to a distribution of part of the
franchise tax imposed and collected by the
State?
Conclusion: No.
G.S. 105-1 16 imposes a State franchise tax upon every electric utility
company, measured by a percentage of its gross receipts. The
Secretary of Revenue then ascertains "the total gross receipts derived
from the sale within any municipality of the commodities or services
described in this section, except water and sewerage services, and
out of the tax of six percent (6%) of the gross receipts levied by
this section, an amount equal to a tax of three percent (3%) of
the gross receipts from sales within any municipality shall be
distributed to such municipality..." (Emphasis supplied.)
The City of Concord owns and operates a system for the distribution
of electricity. It purchases the electricity from Duke Power Company
at wholesale for resale to customers within the City. Duke delivers
the electricity to a city-owned substation from which further
distribution is made by the City.
The substation is situated on a lot which, prior to 14 June 1973,
was outside of, but contiguous to, the City limits. The substation
itself was outside the City limits by about 150 feet. The electricity
left the Duke Power Company distribution system and entered the
City system at that point. On 14 June 1973, the City extended
its limits to encompass the lot, together with other properties.
The question is, of course, whether Duke Power Company's gross
receipts from the sale of electricity to the City of Concord before
14 June 1973 were "sales within the municipality" so that a portion
of the tax paid by Duke and collected by the State would have
been distributable by the State to the City of Concord. There is
no question but that a portion of the tax on gross receipts after
that date would be distributable, and has been so distributed. That
question can be answered, we believe, by answering the following
-41-
question: Where did the sale of electricity to the City take place
prior to 14 June 1973?
For the purposes of this inquiry, it is clear that electricity is property
which itself may be the subject of sale.
"So far as the law is concerned, electricity made by
artificial means or electric current is property capable
of ownership and of sale and it may be the subject
of larceny. With regard to the kind of property,
electric current has been characterized as personal
property or a commodity, and it has been said that
the owner thereof may use it as he will, subject only
to the lawful exercise of the police power." 26 Am.
Jur. 2d Electricity, Gas and Steam, §1
"A 'sale' consists in the passing of title from the seller
to the buyer for a price." G.S. 25-2-106 See also
G.S. 25-2-401.
It would appear that title to the electricity in question passes at
the substation, which is the point at which Duke delivers it to the
City and loses all its right to control its further distribution. At
that point, it enters the City's system and is owned and controlled
by it. Since the sale occurred at the substation, was the sale "within
the municipality"?
The word "within" refers to an "area" and thus means "inside the
limits of". Towns ofIndian Lake, et al v. State Board of Equalization
and Review, 45 Misc. 2d 463, 257 N. Y. S. 2d 301. In re White's
Estate, 130 Kan. 714, 288 P. 764. Majeski v. Stuyvesant Homes,
140 N. J. Eq. 460, 55 A. 2d 33
See also District of Columbia v. Chesapeake & Potomac Telephone
Company, 179 F. 2d 814, holding that the place where title passes
is determinative of whether a sale has taken place "within the
District of Columbia" so as to be subject to a gross receipts tax
under a statute imposing such a tax on the sale of public utility
commodities and services.
We conclude, therefore, that delivery of electricity to a substation
physically located outside of and beyond the municipal limits of
-42-
the City of Concord does not constitute a "sale within the
municipality " and that the City is not entitled to a distribution
of a portion of a the gross receipts tax imposed pursuant to
G.S. 105-116.
Rufus L. Edmistem Attorney General
Myron C. Banks
Special Deputy Attorney General
20 August 1975
Subject
State Departments, Institutions and
Agencies; North Carolina Board of
Architecture; Payment of Expense
Allowances to members of
Requested by: Mr. R. Mayne Albright
Attorney for the North Carolina
Board of Architecture
Question: May the Board approve and pay expense
vouchers of its Board members under the
provisions of its practice act, G.S. 83-10,
or is the Board restricted to the expense
allowance provision of G.S. 93B-5 as
amended by Chapter 765 of the General
Assembly of North Carolina, Session 1975?
Conclusion: The Board is restricted to the expense
allowance provisions of G.S. 93B-5 as
amended by Chapter 765 of the General
Assembly of North Carolina, Session 1975.
G.S. 83-10 provides that all expenses incurred by members of the
Board of Architecture necessary in the discharge of their duties be
paid by the Treasurer of the Board upon warrant drawn by the
Secretary and approved by the President from funds derived from
examination fees. While this specific provision of Chapter 83 of the
North Carolina General Statutes has not been changed, the General
-43-
Assembly has set out in Chapter 93B-5(b) as amended by Chapter
765 of the General Assembly of North Carolina, Session 1975,
pertaining to Occupational Licensing Boards, that all Board members
shall be reimbursed for all necessary travel expense, including room,
meals and reasonable gratuities, in an amount not to exceed that
authorized under G.S. 138-6(a)(3) which now provides
TWENTY-THREE DOLLARS ($2.3) per day while traveling in State
and THIRTY-FIVE DOLLARS ($35) per day while traveling out
of State. Chapter 765 which amended G.S. 93B-5 further provided
that:
"Sec. 3. All laws and clauses of laws in conflict
with this Act are hereby repealed."
It is apparent from reading Section 3 as set out above that the
intent of the General Assembly was to repeal the provisions of
G.S. 83-10 which provides that all expenses incurred by members
of the Board be reimbursed, and replaces it by Chapter 765. Board
members shall be reimbursed as provided therein.
Rufus L. Edmisten, Attorney General
James E. Magner, Jr.
Assistant Attorney General
20 August 1975
Subject: Municipalities; Redevelopment
Commission; Municipality Exercising
Powers of Redevelopment Commission;
G.S. 160A-505; Eminent Domain; Sale of
Property in Redevelopment Project
Requested by: Mr. Tommy W. Jarrett
Attorney-at-Law
Goldsboro
Questions: (1) Where a city has abolished a
redevelopment commission and exercises
the powers, duties and responsibilities of
-44-
the commission itself, pursuant to
G.S. 160A-505, may the municipality
exercise the power of eminent domain as
conferred upon a redevelopment
commission in G.S. 160A-515?
(2) Where the municipality has assumed
the powers and duties of a redevelopment
commission, do the provisions of
G.S. 160A-514, concerning the disposition
of property, apply or do the provisions of
G.S. 160A-266 through 160A-275 apply?
Conclusions: (1) The municipality is restricted to
exercising the power of eminent domain as
conferred by G.S. 160A-515 in carrying
out the powers and duties of a
redevelopment commission.
(2) G.S. 160-514 is controlling.
Pursuant to G.S. 160A-505, a city may abolish a redevelopment
:ommission and undertake to exercise such powers, duties and
•esponsibilities of the commission itself and it may assign the
idministration of redevelopment policies, programs and plans to any
existing or new department of the municipality. When a municipality
ibolishes a redevelopment commission, it may, at any time
aibsequent to such abolishment or concurrently therewith, exercise
he authority granted by G.S. 160A-505(a). A careful reading of
tG.S. 160A-505(a) indicates that the abolishment of the
edevelopment commission and the assumption of powers, duties
ind responsibilities of the commission by the city confers upon the
nunicipality, or any department of the municipality which it has
issigned such powers, duties and responsibilities, the same authority
(contained in Article 22 of Chapter 160A, as previously was vested
In the redevelopment commission.
Ve conclude, therefore, that in carrying out a redevelopment project,
he city in acquiring property through eminent domain must use
he procedures specified in G.S. 160A-515.
-45-
Although G.S. 160A-241 confers the power of eminent domain
upon municipalities in addition to powers conferred by any other
general law, charter or local act, the purposes for which the power
of eminent domain may be exercised pursuant to G.S. 160A-241,
are limited to the purposes listed therein, which do not include
redevelopment projects.
Therefore, we conclude that the city, in carrying out a
redevelopment project, should follow the procedures prescribed in
G.S. 160A-515.
Likewise, we conclude that in the disposition of property of a
redevelopment project, G.S. 160A-514 should be followed by the
municipality, rather than the provisions for the disposition of
property contained in G.S. 160A-266 through G.S. 160A-275.
Thus, we conclude that where a city itself is exercising the powers,
duties and responsibilities of a redevelopment commission, it is:
restricted in carrying out a redevelopment program to those powers:
and procedures prescribed in Article 22 of Chapter 160 relating to
redevelopment commissions.
Rufus L. Edmisten, Attorney General
James F. Bullock
Senior Deputy Attorney General
20 August 1975
Subject:
Requested by:
Questions:
Licenses and Licensing; House Mover?
Licensing Board; Prorate License year and
License Fee; Indemnification Bone
Required by Chapter 366, 1975 Sessior
Laws (G.S. 136-44.32)
Ms. Lana Brau
Secretary
House Movers Licensing Board
(1) What is the meaning and intent ol
the term "indemnification bond" as usee
-46-
in G.S. 136-44.32 which sets up the
requirements to become a registered
professional house mover?
(2) May the House Movers Licensing
Board prorate the license year and license
fee in such a manner so that all licenses
become due on a date certain?
Conclusions: (1) The meaning and intent of the term
"indemnification bond" as used in
G.S. \36A4.32. is to protect and secure
citizens of the State of North Carolina
against loss or damage that they might
suffer, through no fault of their own, by
the employment of a registered house
mover to relocate an improvement from
one point to another.
(2) No.
G.S. 136-44.32 provides, in part:
"No person shall engage in the business of moving
houses on a State highway or road unless such person
has obtained a license under the rules and regulations
of the board and under the provisions of this Article.
No person shall be licensed until he furnishes the board
with proof that he has and will maintain personal
injury liability insurance with limits of at least one
hundred thousand dollars/three hundred thousand
dollars ($100,000/$300,000); property damage
insurance of at least fifty thousand dollars ($50,000);
and indemnification bond in a minimum amount of
fifty thousand dollars ($50,000)...."
In the interpretation and construction of statutes, the legislative
intent must be determined. "Words in a statute are to be given their
natural, ordinary meaning, unless the context requires a different
construction." Housing Authority v. Farabee, 284 NC 2.42. In Sellers
v. Refrigerators, Inc., 283 NC 79, the Court said:
-47-
"Where the words of a statute have not acquired
a technical meaning, they must be construed in
accordance with their common and ordinary
meaning..." (p. 85)
In 41 Am. Jur. 2d, Indemnity, §1, page 687, the term "indemnity'
is defined as follows:
"The word 'indemnity' is defined by lexicographers
to mean 'security or protection against hurt or loss
or damage'. The word appears to be used in two
general senses: (1) in the sense of giving security,
which in many cases is done by the execution and
delivery of a bond; and (2) in the sense of
compensating for actual damage."
It may be stated, therefore, that the purpose of the indemnificatioi
bond required by the provisions of Chapter 366, 1975 Session Laws
particularly G.S. 136-44.32, is to save harmless the customers o
the licensed house mover against loss or damage they might suffe
by reason of the employment of a licensed house mover in relocatinj
an improvement. The loss for which the indemnity is provided unde
the statute is for the loss or damage to property being relocatec
by the licensed house mover, his agents, or employees. Sucl
indemnification bond shall be secured for the benefit and use o
aggrieved persons and executed by an authorized corporate suretj
or insurer approved by the Commissioner of Insurance in the tota
aggregate amount of FIFTY THOUSAND DOLLARS ($50,000). Thi
bond shall be continuous in form and shall be maintained an(
replaced annually at the time of renewal of the license. The bom
shall be conditioned on the prompt payment of the losse:
hereinabove specified. Such bond shall remain in full force unti
the surety is released from liability by the House Movers Licensing
Board. Without prejudice to any liability accruing prior to sucK
cancellation however, the surety may cancel said bond upon 30 day:
advance notice in writing filed with the Board.
With respect to the authority of the Board to prorate the license
year and license fee in such a manner as to have all licenses expin
on a date certain, the statute is very specific. G.S. 136-44.3^
provides in part:
-48-
"A license issued hereunder shall be effective for a
period of one year from date of issuance. An annual
license fee in the amount of one hundred dollars
($100.00) shall be paid to the board...."
[Tie statute specifically provides that the license issued by the Board
hall be effective for a period of one year from date of issuance,
j.S. 136^44.32, and makes no provisions for having either the
icense year or license fee prorated in such a manner as to have
11 licenses become due on a date certain.
Rufus L. Edmisten, Attorney General
James E. Magner, Jr.
Assistant Attorney General
:0 August 1975
iubject:
Requested by:
Question:
'on elusion:
Mental Health; Voluntary Admissions of
Minors and Incompetent Persons
Mr. John L. Pinnix
Special Counsel
Broughton Hospital
Do the post-admission procedures specified
by G.S. 122-56.7 violate the right to
privacy of a voluntarily admitted minor or
incompetent person?
No.
le policy of the State is to encourage voluntary admission to a
reatment facility of any person believing himself to be in need of
reatment for mental illness or inebriety. See G.S. 122-56.1 and
J.S. 122-56.3.
i.S. 122-56.5 provides that a parent, person standing in Loco
arentis or guardian shall act for a minor and a guardian or trustee
lall act for a person adjudicated non compos mentis in applying
)r admission to a treatment facility.
-49-
In In re Long, 25 N.C. App. 702, S.E. 2d (19751
the Court stated:
"...we find the admission procedure used in the present
case to be permissible. The judicial deference afforded
to parental authority along with the parent's interest
in being able to seek immediate treatment and the
policy of encouraging voluntary admissions outweigh
any interest the minor may have in pre-admission
hearing.... However, the continued confinement of a
minor based on that procedure requires procedural
safeguards consistent with the Due Process Clause.
Such procedural due process should be afforded at the
earliest possible time after admission. We will not
undertake to formulate a post-admission procedure
designed to protect against the unnecessary
confinement of a minor under Article 4 of Chapter
122. That is best left to the wisdom of the
Legislature."
Chapter 839 of the 1975 Session Laws added a new section td
Article 4 of Chapter 122 which is designated as G.S. 122-56.7 anc
entitled "Judicial determination." This section provides for a hearing
'
specified by the Court of Appeals in In re Long, supra, and read;m
in pertinent part as follows:
"(a) A hearing shall be held in district court in the
county in which the treatment facility is located
within 10 days of the day a minor or a person
adjudicated non compos mentis is admitted to a
treatment facility pursuant to G.S. 122-56.5
(b) The court shall determine whether
(1 ) such person is mentally ill or inebriate and
(2) is in need of further treatment at the
treatment facility."
This section further provides that the initial hearing and al
subsequent proceedings shall be governed by the involuntary
commitment procedures of Chapter 122, Article 5A, of the Genera
Statutes.
-50-
'he Court of Appeals in the Long case required a judicial
etermination satisfying procedural due process requirements for a
linor or non compos mentis admitted by parent, guardian or trustee
ut left the formulation of such procedure for legislative action.
'his Office is of the opinion the post-admission hearing specified
y G.S. 122-56.7 does not violate any provision of the Federal
'onstitution, the Constitution of North Carolina, or the right of
rivacy of the patient.
Rufus L. Edmisten, Attorney General
Parks H. Icenhour
Assistant Attorney General
1 August 1975
ubject: Mental Health; Facility Services; Licenses
and Licensing; Requirement for Licensing
of Local Mental Health Facilities Under
G.S. 122-35.28
^quested by:
uestions:
Mr. I. O. Wilkerson, Jr.
Director
Division of Facility Services
N. C. Department of Human Resources
Does Article 2E of Chapter 1 22 require the
licensing of:
(a) Mental health clinics operated under
Article 2A, Chapter 122?
(b) Mental health clinics operated under
Article 2C, Chapter 1 22 both single county
operations and multiple county operations?
(c) Mental health clinics furnishing only
inpatient treatment, only outpatient
treatment, or both inpatient and outpatient
treatment?
-51-
(d) Alcoholic rehabilitation agencie
formed under Article 2B, Chapter 122?
(e) State operated institutions such a
the four mental hospitals, the four center
for the mentally retarded, the thre
alcoholic rehabilitation centers, and th
Wright School for emotionally disturbs
children?
Conclusions: Article 2.E of Chapter 122 does require th
licensing of all of the types of facilitie I
described in (a), (b), (c), and (d). It doe
not require the licensing of the facilitie
described in (e).
Article 2E of Chapter 122 is entitled "Licensing of local menta
health facilities". It is a new statute enacted at the 1975 Sessio
of the General Assembly with an effective date of July 1, 197!
The following statement found in G.S. 122-35.28, a section include
within Article 2E, appears to set forth the basic intent of t
legislators:
"Any local mental health facility, of whatsoever
nature, which is operated under the provisions of
Chapter 122 of the General Statutes is required to
obtain a license permitting such operation...."
Clearly, the facilities operated in accordance with Articles 2A, 2
and 2C are local entities by their very statutory description!
Further, the sweeping language of G.S. 122-35.28 contemplates th
inclusion of each and every one of these facilities regardless of th
scope of or limitations on the services rendered by it.
As to the other facilities described in the question, the language
in the following statutes clearly stamps them as State rather thaj,
local facilities:
The four mental hospitals-G.S. 122-7;
The four centers for the mentally
retarded-G.S. 122-69;
-52-
The three alcoholic centers-G.S. 122-7.1;
The Wright School for emotionally disturbed
children-G.S. 122-98.1.
Rufus L. Edmisten, Attorney General
William F. O'Connell
Special Deputy Attorney General
. August 1975
abject:
isquested by:
(aestion:
(>n elusion:
State Departments, Institutions and
Agencies; Ports Authority; Power of the
Authority to Sell or Lease its Southport
Facility
Mr. E. E. Lee, Jr.
Executive Director
State Ports Authority
Does the State Ports Authority have the
power to sell or lease its small boat harbor
facility at Southport to a private individual
or enterprise?
The Ports Authority may lease its facility
at Southport to a private individual or
enterprise so long as such lease is consistent
with the purposes for which the Ports
Authority was established. It may not sell
its Southport facilities without specific
legislative authority.
addition to its port facilities at Wilmington and Morehead City,
t; North Carolina State Ports Authority owns and operates a small
bat harbor at Southport. This facility is situated on approximately
3acres of land immediately adjacent to the inter-coastal waterway.
le harbor and a small office building were constructed with funds
neived from a statewide bond referendum in 1959, Chapter 1038
o the 1959 Session Laws. A dry rack storage building was recently
obstructed with Ports Authority funds. The Ports Authority is
-53-
exploring the possibility of selling or leasing this facility and, a"j|
its last meeting, requested an opinion from this Office concerninj
its power to proceed with such sale or lease.
G.S. 143-218(3) provides that the Ports Authority shall:
"Be authorized and empowered to rent, lease, buy,
own, acquire, mortgage, otherwise encumber, and
dispose of such property, real or personal, as said
Authority may deem proper to carry out the purposes
and provisions of this Article, all or any of them;..."
This statute has been interpreted as giving to the Ports Authorit;
power to lease its property to private investors. North Carolina Stat
'
Ports Authority v. First Citizens Bank and Trust Co., 242 N.C. 41^1
88 S.E. 2d 1955; 41 N.C.A.G. 78. As noted in the referenced casf 1
and opinion, however, such a lease must be consistent with thl i'i
purposes for which the Ports Authority was created. See alslita
Brumley v. Baxter, 225 N.C. 691, 36 S.E. 2d 281. In this situation I;;
we believe this to mean that the Ports Authority may lease thij
small boat harbor to a private individual or investor for the operatic-'
of a public marina, but no other purpose.
The question of the power of the Ports Authority to sell any c
its facilities has not heretofore been addressed by the courts or th;
Office. G.S. 143-218(3) does give to the Ports Authority gener;
power to sell its real property. It is the opinion of this Offio
however, that this general authority does not extend so far as 1!
permit the Ports Authority to sell its entire facilities at Southpor;;
J
G.S. 143-217(1) specifically charges the Ports Authority with tl
improvement and development of the harbor facilities at Southpor
The Ports Authority has undertaken this responsibility and publ
funds have been used to carry out such responsibility. We belie1
the harbor facilities at Southport have been dedicated to a publ'j
use. To sell this facility would constitute an abandonment of oi|
of the purposes for which the Ports Authority was created and i
abandonment of its dedication to public use. It is the opinion I
this Office, that authority to sell the Southport facility may n<H
be implied from the general powers of the Ports Authority. Su<|
authority must be specifically granted that agency by the Genei
Assembly.
-54-
n 56 Am. Jur., Municipal Corporations, §550, the authority of
i municipal corporation to sell its property is described. There it
; stated:
"
. .it is generally held that a municipal corporation
has no implied power to sell real property which is
held for a public use, and that such power cannot be
implied from general charter or statutory authority to
acquire, hold, or convey property. The principle is that
all such property is held by the municipality in trust
for the use and benefit of its citizens and is dedicated
to the use of the public, and the corporation cannot
divert itself of title without specific authority from
the legislature."
his principle has consistently been applied in North Carolina.
'ishant v. Lumberton, 254 N.C. 94, 118 S.E. 2d 35; Harris v.
.urham, 185 N.C. 572, 117 S.E. 801. We believe it is generally
iDplicable to public corporations such as the Ports Authority. Wells
Housing Corp., 213 N.C. 744, 197 S.E. 693.
Rufus L. Edmisten, Attorney General
Edwin M. Speas, Jr.
Special Deputy Attorney General
August 1975
Object:
iquested by:
estion
Taxation; Ad Valorem Taxes; Octennial
Revaluation; Public Records; Property
Record Cards; Work in Process of
Completion by Contract Appraiser
Mr. C. Frank Griffin
County Attorney
Union County
Where property record cards are in the
process of completion by a contract
appraiser, and have not been delivered to
-55-
or accepted by the County in connectior
with its octennial revaluation of rea
property, are such cards "public records'"
Conclusion: No.
Inquiry has been made as to whether an individual is entitled t<
have the County Tax Supervisor produce for inspection "real estatr
appraisal cards" as "public records" under the followin
circumstances:
Union County is in the process of performing the
octennial revaluation of real property in the county
for ad valorem tax purposes, the revaluation to be
effective on 1 January 1976. Pursuant to
G.S. 105-299, the County Commissioners employed
and contracted with the Centralina Council of
Governments to perform the reappraisal.
The contract is rather long and detailed, and provides in part i\
follows:
General Conditions, Paragraph E: Centralina "shall
carry on the program of Revaluation without
interruption and shall complete and deliver said work
on or before September 1, 1975..."
Work To Be Performed, Paragraph A: "Centralina shall
prepare and furnish the County with. ..an assessment
manual and cost schedules..." Paragraph B: "Suitable
record cards. ..shall be designed to meet the
requirements of the County. ..which cards are to be
furnished at the expense of Centralina." Further,
"Centralina shall provide at its own expense all
supplies, cards, and field record sheets needed in
performing the work and all reports and manuals to
be delivered to the County...Centralina shall, upon
completition and acceptance of the work, deliver to
the County Tax Supervisor all field notes, cards, and
worksheets on all kinds and classes of properties valued
in the appraisal..."
-56-
jAt this point in time, Centralina has done much work toward
measurement and sketching of buildings, completing market surveys,
etc., but this information has not been translated into values which
have been applied to the property record cards. In addition, other
raw data has been gathered concerning yarious parcels of land but
no appraisals have been completed, with the possible exception of
a few buildings in one or two townships. All of the work has been
done by employees of Centralina, with some supervision by the Tax
Supervisor.
Centralina's employees working on the project have, out of necessity
and for convenience, been furnished with office space in the
Courthouse. Those employees and some County employees share
that space. Centralina, again out of necessity and as provided by
the contract, has access to the office and files of the Tax Supervisor
relative to the work being done by Centralina. To date, no work
performed by Centralina has been accepted by the County, or
delivered for acceptance, although much of the material, in various
>tages of completion, is physically located in space in the Courthouse
issigned to the Tax Supervisor.
K newspaper reporter has now asked to see "the 1976 real estate
ippraisal cards", contending that they are public records, apparently
?or the purpose of preparing a newspaper account of the revaluation
efforts of the county.
There is no question that public records, except as otherwise
provided by law, ought to be accessible to the public. Public business
s generally best performed when subject to public scrutiny, and
he law so provides: "Every person having custody of public records
hall permit them to be inspected..." G.S. 132-6. Nor can there be
iny question, we believe, that county tax records, including the
:ounty's property record cards, are such records and that the Tax
Supervisor is ordinarily the person having custody of them and
equired to permit inspection of them.
lowever, it is our opinion that "inchoate" tax records in the process
)f preparation by one who has contracted with the county to
>rovide such service do not constitute public records. "Public
ecords" include "documentary material, regardless of physical form
>r characteristics, made or received pursuant to law or ordinance
-57-
in connection with the transaction of public business by any agency
of North Carolina government or its subdivisions." (Emphasis
supplied. )G.S. 132-1. Here, according to the terms of the contract,
the material sought has not been "made" by the Tax Supervisor
or yet "received" by him.
Neither are these inchoate records public records in the hands of
Centralina, which itself may be a unit of government, since they
are not made by it "pursuant to law or ordinance" but rather
pursuant to a contract to perform what is referred to in the contract
and in the Centralina charter as a "special project". The contract
itself is defined by statute as one "for personal services"
(G.S. 105-299) and ordinarily the work product of one performing
such a contract is his alone unless and until it is transmuted into
such form as the contract itself may require to be delivered. We
do not believe, for example, that a lawyer, employed to examine
the title to county property, is required to open his title file on
the property to the public simply because he has a contract to
provide a personal service to the County, although his opinion of
title, and indeed his file, would be open if furnished to the County
and accepted by it pursuant to the contract.
Other jurisdictions have reached similar conclusions in connection
with incomplete appraisals made by employed appraisers:
Under v. Eckard, 261 Iowa 216, 152 N.W. 2d 833;
Curran v. Board of Park Commissioners , 2.2 Ohio Misc.
197, 51 Ohio Ops. 2d 321, 259 N.C. 2d 757.
We, therefore, conclude that the Tax Supervisor may not be requirec
to open property record cards to public inspection until they are
completed and delivered to the County in fulfillment of the contract
and accepted by it. The entire appraisal process as well as its
application to individual parcels of land is open to inspection
scrutiny and challenge under G.S. 105-317 and 105-322, after the
records have become public. However, in all candor, we can set
no harm in permitting the inspection of the incomplete records b)
a representative of the press unless to do so would delay or hindei
the completion of the revaluation task.
Rufus L. Edmisten, Attorney General
Myron C. Banks
Special Deputy Attorney General
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CA
21 August 1975
Subject:
Requested by:
Question:
"on elusion:
Mental Health; Area Mental Health
Programs, Single and Multi-County;
Authority to Manage and Control Mental
Health Program Funds
Mr. R. J. Bickel
Assistant Director for Administration
Division of Mental Health Services
N. C. Department of Human Resources
In both single and multi-county mental
health programs, who has authority to
manage and control mental health program
funds?
In both single and multi-county mental
health programs, the area mental health
board has the authority to manage and
control mental health program funds.
rea mental health programs are authorized by Article 2C of Chapter
22 of the General Statutes. G.S. 122-35.20 provides for the
ippointment of area mental health boards in both single and multiple
:ounties and, subject to the rules and regulations of the State
Commission for Mental Health Services, such board is responsible
'or evaluating the area needs and programs in the area of mental
lealth and related fields. G.S. 122-35.19 defines "local funds" and
'State grant-in-aid" with G.S. 1 22-35.23A providing a formula by
vhich appropriations are made by the Department of Human
Resources to the area mental health programs.
The nature of area mental health programs has been the subject
, )f previous opinions by this Office. Those opinions conclude that
irea mental health centers under Article 2C of Chapter 1 22 of the
jeneral Statutes are under the authority and control of area mental
lealth boards and not the county boards of commissioners, (Opinion
)f the Attorney General to Mr. Ervin M. Funderburk, Jr., 41
^J.C.A.G. 778 (1972)), each area mental health program is
dministered by an area mental health board which constitutes an
-59-
entity created by the legislature with governmental functions,
(Attorney General Opinion to Mr. R. Patterson Webb, 42 N.C.A.G.
120 (1972)), the area mental health board has authority to set the
wages of employees of the area mental health program (Attorney
General's Opinion to Mr. R. J. Bickel, 44 N.C.A.G. 67 (1975)), and
that both single and multi-county programs are "public authorities"
within the meaning of G.S. 159-7(b) (10). (Attorney General's
Opinion to Mr. Harlan E. Boyles, 44 N.C.A.G. 185 (1975)).
Additionally, Chapter 400 of the 1975 Session Laws amended
G.S. 122-35. 20(e) to read in pertinent part as follows:
"Area mental health boards are local political
subdivisions created jointly by county or counties and
the North Carolina Commission for Mental Health
Services,..."
Based upon the foregoing, this Office is of the opinion that the
area mental health board, a local political subdivision, has authority
to manage and control mental health program funds. This should
not be construed as inhibiting such boards from seeking the advice
and assistance of the counties or other local subdivisions of
government.
Rufus L. Edmisten, Attorney General
Parks H. Icenhour
Assistant Attorney General
28 August 1975
Subject:
Requested by:
Questions:
Criminal Procedure; Chapter 15A
Non-testimonial Identification; Discover}
of Defendant's Remarks to Witnesses
Mr. Anthony Brannon
District Attorney
Fourteenth Judicial District
(1) Does the requirement that the Stafc
provide the defense with copies o
-60^
statements made by the defendant which
the State intends to offer at trial
(G.S. 15A-903(a)) extend to remarks made
by the defendant to witnesses who have
subsequently been interviewed by persons
acting on behalf of the State?
(2) After an arrest of a defendant based
upon probable cause, may law enforcement
officers utilize normal investigative
procedures such as photographing,
fingerprinting, lineups, etc. or must the
arresting officer proceed exclusively under
the procedures for non-testimonial
identification procedures set out in
G.S. 15A-2.71 through G.S. 15A-282?
Conclusions: (1) No, the requirement in
G.S. 15A-903(a) that the State furnish to
the defense copies of statements of the
defendant which the State intends to offer
at trial does not extend to remarks or
conversation by the defendant to or in the
presence of witnesses who are subsequently
interviewed by persons acting on behalf of
the State.
(2) No, after arrest of a defendant based
upon probable cause, a law enforcement
officer may utilize normal investigative
procedures including fingerprinting,
photographing, lineups, etc. and need not
follow exclusively the Article 14
non-testimonial identification procedures.
The thrust of the requirement of G.S. 15A-903(a) is to require that
counsel for a defendant knows of the existence and can thereafter
inquire into the circumstances surrounding the taking of
"statements" by the defendant to law enforcement officers. The
statements sought to be disclosed are "admissions" and
"confessions" by the defendant which might ordinarily be subject
-61-
to inquiry via a motion to suppress under Article 53.
The purpose of requiring such disclosure, in addition to the general
policies favoring more complete discovery, is to facilitate the pretrial
disposition of motions to suppress admissions and/or confessions
made by the defendant in factual circumstances raising
Miranda-related factual questions of improper inducement or
coercion, deprivation of liberty, and voluntariness of confessions.
The remarks made to a bystander by a defendant in the process
of committing a crime are not subject to the same policy
considerations and the disclosure of that information would more
logically fall under the provisions of G.S. 15A-904. There the Act
exempts from mandatory discovery the statements of witnesses or
prospective witnesses of the State to "anyone acting on behalf of
the State".
This conclusion is further reinforced and supported by the exclusion
from the Act by the General Assembly of the requirement (originally
in the 1973 SB 207/HB 256) to disclose the names and addresses
of witnesses. It would be illogical to assume that the Act intended
to require discovery of remarks of the defendant to bystander
witnesses but not disclosure of the witnesses' names. Yet the record
is clear that the General Assembly in the Senate deleted from SB
207/HB 256 proposed Section 15A-903(f) and 15A-904(c) which
would have required reciprocal disclosure of witnesses' names and
addresses.
The question here was raised in the House and Senate committees
with regard to proposed Section 15A-272 as it appeared in HB 256
and SB 207 in 1973. While the intent of the Criminal Code
Commission was clearly not to require that the Article 14 procedure
be required in normal law enforcement investigative procedures, the
General Assembly wanted more explicit assurances and amended the
bill to add what is now the second sentence of G.S. 15A-272. It
reads:
"Nothing in this Article shall preclude such additional
investigative procedures as are otherwise permitted by
law."
-62
The intent of the section (G.S. 15A-272) is clear on its face; but
read in the context of its amendment by adding the second sentence,
the legislative intent is undoubtedly to authorize non-testimonial
identification procedures as an additional law enforcement
investigative tool which could be utilized upon a showing of
"reasonable grounds to suspect" the person named, a less stringent
test than "probable cause to believe" that the person named had
in fact committed the offense.
Rufus L. Edmisten, Attorney General
Sidney S. Eagles, Jr.
Special Deputy Attorney General
8 September 1975
Subject
State Departments, Institutions and
Agencies; Public Officers, Deferred
Compensation Plan Board of Trustees;
Sovereign Immunity; G.S. 147-9.2 et seq.
Requested by: Mr. Glen B. Hardymon
Board of Trustees
North Carolina Public Employees Deferred
Compensation Plan
Questions: (1) Are Trustees of the North Carolina
Public Employees' Deferred Compensation
Plan public officers?
(2) Does the doctrine
immunity apply to them?
of sovereign
Conclusions: (1) Yes.
(2) Yes, to the same extent as to other
public officers.
In 1971, the General Assembly adopted broad enabling legislation
pursuant to which a State employee might defer income for income
-63-
tax purposes, a benefit which had not previously been available.
C. 433, S.L. 1971; now codified as G.S. 147-9.2 et seq. Although
the legislation has been in effect since ratification, on 24 May 1971,
no income has been deferred under it, due undoubtedly to the many
complexities involved in establishing any new tax-oriented benefit
plan and to the very recent development of the deferred
compensation field where public employees are concerned.
Observing the relative lack of activity in implementing the legislation,
the Governor, in 1974, appointed a "Board of Trustees of the North
Carolina Public Employees Deferred Compensation Plan", which, by
Executive Order, was directed to establish a plan, secure its approval
for federal income tax purposes and choose an administrator to assist
in the establishment, maintenance and administration of the
program. The Order further offers to each State agency the use of
the Board in entering into deferred income contracts with
employees.
Following many months of planning, meetings, and public hearings
at which potential administrators and other interested persons and
groups were heard, the Board has now adopted a plan, secured its
approval by IRS, selected an administrator and is now prepared to
offer a deferred compensation plan to State employees.
With that background in mind, and bearing in mind the creation
of the Board by Executive Order and the potentially substantial
funds which will be deferred and invested through the medium of
the Board and its administrator, you have inquired whether, or to
what extent, the Board will be entitled to the protection of the
doctrine of sovereign immunity. The answer to that question appears
to depend upon whether or not the Trustees are "public officers".
G.S. 147-9.4 provides that
"
...the chief executive officer of an
employee, on behalf of the employer, may enter into an annual
contract with an employee under which the employee irrevocably
elects to defer receipt of a portion of his following year's scheduled
salary,. ..The agreement to defer income referred to herein shall be
effective under the necessary regulations and procedures adopted
by the chief executive officer and on forms prepared by him."
(Emphasis supplied.)
-64-
By definition, an "employee" is a permanent, not temporary, State
employee, the "employer" is the State of North Carolina and a
"chief executive officer" is the administrative head of a State
department or agency or "an agent of such chief executive officer
duly authorized to enter into" deferred compensation contracts.
G.S. 147-9.2.
The Governor is himself such a "chief executive officer", since he
is the administrative head of "the Office of the Governor", having
its own "immediate staff" of employees. G.S. 143A-12;
G.S. 143A-10; G.S. 143B-5. He is clearly authorized, under
G.S. 147-9.4, to adopt "necessary regulations and procedures", and
may appoint an agent to represent him. G.S. 147-9.2(1). In this
case, his agent is the Board of Trustees, which for deferred
compensation purposes is by definition a "chief executive officer"
(G.S. 147-9.2(1)), which acts "on behalf of the employer" (by
definition, the State). G.S. 147-9.4. We , therefore, conclude that
Trustees, who are appointed under the agency head's statutory
power to adopt "necessary regulations and procedures", and whose
function it is to act "on behalf of" the State under a statute which
specifically recognizes the authority of an agency head to act
through an "agent", must be and are public officers within the
relatively narrow parameters of a deferred compensation plan.
Of course, the Governor has not merely created the Board (and
the Board has not merely created the Plan) for the relatively few
employees of the Governor's office. The Executive Order recognizes
that by providing that other "chief executive officers" may also
appoint the Board as their agents with respect to their departmental
employees. There is no requirement in the law that they do so,
but if they do, then Board becomes agent for each such department
head, and again, as such agent, a Trustee would be a public officer.
With that in mind, the Trustees would be subject to the same
immunity, and to the same liabilities, as other public officers
generally. While any assertion of liability will depend upon the
operative facts and circumstances, the following general statements
which concern public officers, and which appear in 63 AM. Jur.
2d, Public Officers and Employees, § 288, are broadly applicable:
"§ 288. Acts in line of duty or under color of
authority. As a rule, a public officer, whether judicial,
-65-
quasi-judicial, or executive is not personally liable to
one injured in consequence of an act performed within
the scope of his official authority, and in the line of
his official duty. In order that acts may be done within
the scope of official authority, it is not necessary that
they be prescribed by statute, or even that they be
specifically directed or requested by a superior officer,
but it is sufficient if they are done by an officer in
relation to matters committed by law to his control
or supervision or that they have more or less
connection with such matters, or that they are
governed by a lawful requirement of the department
under whose authority the officer is acting.
The protection extends only to acts done in the line
of official duty. Therefore, if an officer, even while
acting under color of his office, exceeds the power
conferred on him by law, he cannot shelter himself
under the plea that he is a public agent. Neither an
officer nor an agent can properly be said to have acted
under color of a law which gave neither him nor any
other person authority to do the act in question; nor
can an officer be said to have acted under the
authority of his office unless he has some appearance
of right to it and is in possession and acting in that
capacity, for the acts of a mere intruder or usurper
of an office, without any colorable title, are
undoubtedly void both as to individuals and as to the
public."
Rufus L. Edmisten, Attorney General
Myron C. Banks,
Special Deputy Attorney General
11 September 1975
Subject: Armory Facilities; Use of City Funds for
Construction of Armory Facilities which
may be Located Outside the City Limits
-66-
Requested by: Mr. Lowry M. Betts
City Attorney
San ford
Question: May a city appropriate and contribute city
funds to be used in the construction of
armory facilities for the North Carolina
National Guard, which facilities will be
located within the county but outside the
city limits?
Conclusion: Yes.
G.S. 127-112 provides that any city or town in any county in the
State may jointly or separately make appropriations to supplement
available Federal or State funds to be used for the construction
of armory facilities for the National Guard and that appropriations
made under this authority shall be in amounts and in proportions
as may be deemed adequate and necessary by the governing body
of the county and/or municipality desiring to participate in the
armory construction program.
G.S. 143-236 provides that every municipality and county is
authorized and empowered to appropriate from year-to-year public
funds for the benefit of any unit or units of the National Guard
as the governing body of the municipality or county deems wise
and expedient.
G.S. 143-235 provides that every municipality and county is
authorized and empowered to acquire real property which may be
suitable for use as an armory or for the construction of an armory
thereon or for any other purpose of a unit or units of the National
Guard. It further provides that contracting of an indebtedness and
the expediture of public funds for this purpose by any municipality
or county will be a "necessary expense and for a public purpose."
The above cited authorities do not limit the expenditure of
municipal funds to the construction of an armory facility or the
maintenance of an armory facility to such facilities located within
the city limits. They provide that the expenditure of moneys for
such purposes may be made by a city or county "separately or
-67-
jointly" and that such expenditures will be considered a necessary
expense and for a public purpose. The statutes are broad and
expansive and do not restrict a city from appropriating and
contributing city funds to be used for the construction of armory
facilities for the North Carolina National Guard, even though those
facilities may be located outside the municipal boundaries of the
city.
Rufus L. Edmisten, Attorney General
John R. B. Matthis
Special Deputy Attorney General
11 September 1975
Subject:
Requested by:
Question:
Conclusion:
Human Resources; Youth Services; Infants
and Incompetents; Placement of Youths
Over Sixteen Years of Age in Youth
Services Facilities
Mr. Edward F. Taylor
Assistant Administrator
Juvenile Services Division
Administrative Office of the Courts
May a juvenile who has been placed on
probation after reaching age sixteen be
committed to the Department of Human
Resources for placement in a facility
administered by the Director of Youth
Services because of a later violation of
probation or other reason arising prior to
his attaining the age of eighteen years?
No.
The current Chapter 134, effective July 1, 1975, establishes the rules
for the administration of training schools by the Department of
Human Resources, with the Director of Youth Services being the
responsible official for that administration. As used in that Chapter,
-68-
the word "child" is defined as any person who has not reached
his sixteenth birthday and "delinquent child" is defined as any child
subject to juvenile jurisdiction in the district court "as defined by
G.S. 7A-278(2) who is subject to commitment to an institution for
delinquents under G.S. 7A-286." See G.S. 134-2(1) and (2).
Further, G.S. 134-18 requires the Department of Human Resources
to accept "...all children who have been committed for delinquency
under G.S. 7A-286, provided the director or his staff finds that the
statutory criteria specified in G.S. 7A-286(5) have been complied
with."
Turning to G.S. 7A-278, the following provisions contain significant
definitions:
"(1) 'Child' is any person who has not reached his
eighteenth birthday and is not married, emancipated,
or a member of the armed services of the United
States: Provided that, for the purposes of subdivision
(2) of this section, 'child' is any person who has not
reached his sixteenth birthday."
"(2) 'Delinquent child' includes any child who has
committed any criminal offense under State law or
under an ordinance of local government, including
violations of the motor vehicle laws or a child who
has violated conditions of his probation under this
article."
Finally, G.S. 7A-286 provides for the commitment to a regional
program of "a child who is delinquent."
Correlating all of the above statutory provisions, the conclusion is
inevitable that the General Assembly intended that only children
who have been adjudicated delinquent will be committed for
placement in training schools, and that children, for that purpose,
shall include only those adjudged to be delinquent prior to the age
of sixteen.
It is noted, however, that the second paragraph of G.S. 7A-286
provides that when the court "...adjudicates the child to be
delinquent...the jurisdiction of the court to modify any order of
-69-
disposition made in the case shall continue during the minority of
the child or until terminated by order of the court, except as
otherwise provided herein..." Thus, it would appear that when the
adjudication of delinquency occurs before the child reaches the age
of sixteen, modification of the court order to permit commitment
to a Department of Human Resources Training School is authorized
prior to the time the individual reaches the age of eighteen.
Rufus L. Edmisten, Attorney General
William F. O'Connell
Special Deputy Attorney General
24 September 1975
Subject
Requested by:
Question
Mental Health; Area Mental Health
Programs; Personnel Administration of
Program Employees
Mr. Edward B. Krause
Attorney for Area Board of Mental Health
Area MI
Buncombe, Madison, Yancey and Mitchell
Counties
As a result of the amendment of
G.S. 122-35.20 by the 1975 General
Assembly, are employees of Area Mental
Health Programs now "county
employees"?
Employees of Area Mental Health Programs
are not "county employees" but Chapter
126, North Carolina General Statutes, is
applicable to them for the purpose of
personnel administration.
Article 2C, Chapter 1 22 creates Area Mental Health Programs. These
Programs are under the control of Area Mental Health Boards, and
this Office has repeatedly held such Boards to be governmental
-70-
Conclusion:
entities separate from the State and the county governments.
The 1975 General Assembly amended G.S. 122-35.20 (a section
within Article 2C) by adding the following language:
"Area Mental Health Boards are local political
subdivisions created by county or counties and the
North Carolina Commission for Mental Health
Services, and employees thereof are local employees;
however, for the purpose of personnel administration
Chapter 126 shall be applicable."
Significantly, this Amendment, effective July 1, 1975, did not use
the terminology "county employees" nor is there any indication
of an intent to convert the program employees into employees of
the county. However, the patent language of the Amendment
requires adherence to Chapter 126 for "personnel administration".
As a result of the language utilized by the General Assembly, it
would appear that it was intended to make the language of Article
3 (entitled Local Discretion as to Local Government Employees)
of Chapter 126 directly applicable to these programs.
In view of this statutory change, any conflict between it and the
Opinion of the Attorney General to Mr. R. J. Bickel, dated 3
September 1974 (44 N.C.A.G. 67) must be resolved in favor of the
later enacted statute.
Rufus L. Edmisten, Attorney General
William F. O'Connell
Special Deputy Attorney General
24 September 1975
Subject: Purchase and Contracts; Board of
Transportation; Contracts for Services of
Consultants
Requested by: Mr. Billy Rose
State Highway Administrator
N. C. Department of Transportation
-71-
Question: Do the provisions of Chapter 887 of the
1975 Session Laws, entitled "An Act to
Prohibit Employment of Consultants by
State Agencies without approval of the
Governor" apply to contracts entered into
by the Board of Transportation with
engineering firms for planning, design or
construction of highways?
Conclusion: No. The provisions of Chapter 887
applicable to "contracts for services of a
consultant or advisory nature" do not
include contracts for the planning, design
and construction of highways which the
Board of Transportation is authorized to
enter into by the provisions of Chapter 136
of the General Statutes.
Chapter 887 of the 1975 Session Laws provides that "(b) No State
agency shall contract to obtain services of a consultant or advisory
nature unless the proposed contract has been justified to and
approved in writing by the Governor..." (Emphasis supplied.) The
Act provides that the Governor must find certain facts before
approving the contract, including the necessity for it, that it cannot
be performed by a State agency, that the estimated cost is
reasonable, that the funds have been appropriated for such contract
or they are otherwise available, and that the rules of the Division
of Purchase and Contract have been complied with.
The only exclusions to the Act are provided for in Section 5 of
the Act. Section 5 provides that "This act shall not apply to the
General Assembly, Special Study Commission or the Institute of
Government, nor shall it apply to attorneys employed by the North
Ca olina Department of Justice, or physicians or doctors performing
contractural services for any State agency." The contracts inquired
about do not come within the specific exclusions provided for in
the Act.
The Act does not define the term nor specify what is included within
the term "services of a consultant or advisory nature." It is the
Opinion of this Office that contracts for "services of a consultant
-72-
or advisory nature" as the term is used in Chapter 887 of the 1975
Session Laws does not include those contracts authorized by the
provisions of Chapter 136 to be entered into for planning, design,
or construction of roads by the Board of Transportation. The Board
of Transportation is authorized to perform such work or to let
contracts for such work necessary to carry out the provisions of
Chapter 136 of the General Statutes. Equipment Company v. Hertz,
256 N. C. 277. G.S. 136-28.1(0 provides that "contracts for
professional engineering services" may be let by the Board of
Transportation without taking and considering bids for proposals.
There appears to be no intent by this Act of the Legislature to
repeal or modify the authority already given to the Board of
Transportation to perform such work or to let contracts for such
work, as may be necessary to carry out the provisions of Chapter
136.
Rufus L. Edmisten, Attorney General
Eugene A. Smith
Special Deputy Attorney General
24 September 1975
Subject: State Departments, Institutions and
Agencies; Mental Health; Patients; Co

NORTH CAROLINA
Volume 45
Number 1
fus l. edmisten
torney General
Digitized by the Internet Archive
in 2011 with funding from
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45 N.C.A.G. No. 1 Pages 1 through 187
NORTH CAROLINA
ATTORNEY GENERAL
REPORTS
Opinions of the Attorney General
July 1, 1975 through December 31, 1975
MAILING ADDRESS:
Post Office Box 629
Raleigh, North Carolina 27602
RUFUS L. EDMISTEN
Attorney General
James F. Bullock Andrew A. Vanore, Jr.
Senior Deputy Senior Deputy
Attorney General Attorney General
Robert Bruce White, Jr.
Senior Deputy Attorney General
Jean A. Benoy I. Beverly Lake, Jr.
Deputy Attorney General Deputy Attorney General
Millard R. Rich, Jr.
Deputy Attorney General
Charles H. Smith Howard A. Kramer
Administrative Deputy Deputy Attorney General
Attorney General for Legal Affairs
John A. Elmore, II
Special Assistant to the Attorney General
Myron C. Banks William F. O'Connell
James L. Blackburn James B. Richmond
T. Buie Costen Jacob L. Safron
Sidney S. Eagles, Jr. John M. Silverstein, Jr.
Herbert Lamson, Jr. Eugene A. Smith
John R. Matthis Edwin M. Speas, Jr.
William W. Melvin
Special Deputy Attorneys General
,
Archie W. Anders
_
George W? Boylan
William F. Briley
Lester V. Chalmers, Jr.
H. Al Cole, Jr.
Roy A. Giles, Jr.
Robert P. Gruber
Zoro J. Guice
Guy A. Hamlin
Claude W. Harris
Ralf F. Haskell
Charles M. Hensey
I. B. Hudson, Jr.
Parks H. Icenhour
Richard F. Kane
Richard N. League
James E. Magner, Jr.
Charles J. Murray
Conrad O. Pearson
George J. Poe, Jr.
William A. Raney, Jr.
William B. Ray
Marcella Ann Reed
Robert R. Reilly, Jr.
Thomas M. Ringer, Jr.
Jerry J. Rutledge
Alfred N. Salley
Robert G. Webb
W. Woodward Webb
Thomas B. Wood
Assistant Attorneys General
John W. McDevitt
Consultant
Noel L. Allen
Isaac T. Avery, III
William H. Boone
Jesse C. Brake
E. H. Bunting, Jr.
Joan H. Byers
James M. Carpenter
Elizabeth R. Cochrane
Jack L. Cozort
David S. Crump
Jerry B. Fruitt
Richard L. Griffin
William H. Guy
Claudette C. Hardaway
Norma S. Harrell
Alan S. Hirsch
Robert W. Kaylor
Sandra M. King
Daniel C. Oakley
George J. Oliver
Thomas L. Pollard
Wilton E. Ragland, Jr.
Jo Anne S. Routh
James E. Scarborough
James L. Stuart
James M. Wallace, Jr.
Patricia H. Wagner
Acie L. Ward
David D. Ward
Associate Attorneys
J. C. Rudisill, Jr. David L. Best
Attorneys, Criminal Justice Training and Standards Council
8 July 1975
Subject:
Requested by:
Questions:
Conclusions:
Motor Vehicles; Equipment and
Construction; Use of Red Lights
Mr. T. Perry Jenkins
Law Enforcement Legal Advisor
Region L, Council of Governments
(1) Does the sheriff or chief of police
have authority to regulate who among the
members of a (a) volunteer fire department
or (b) rescue squad may have and use red
lights on their private vehicles?
(2) When and under what circumstances
may the sheriff or chief of police regulate
the use of red lights by members of
voluntary fire and rescue units on their
private or personal vehicles?
(1) Firemen are permitted under the
provisions of G.S. 20-130.1 to use red
lights on their personal or private vehicles
so long as the red light is activated only
in the performance of their duty. Red
lights are approved only for rescue squad
vehicles owned and operated by the rescue
squad while on rescue squad business. No
members of rescue squads except chiefs
and assistant chiefs, as provided by
G.S. 2.0-1 25(b), may use red lights on their
private cars.
(2) G.S. 20-130.1 allows these red lights
to be used by firemen on their personal
vehicles so long as they are activated only
while in the performance of their duty as
firemen while answering a fire call. That
portion of G.S. 20-130.1 (hereinafter set
out) relating to local police approving
1
equipment owned by life saving
organizations was or appears to have been
repealed by the enactment of Article 56
of Chapter 143 (Emergency Medical
Services Act of 1973) which places the
responsibility for approval of emergency
service equipment in the Department of
Human Resources.
G.S. 20-130.1 reads as follows:
" § 20-130.1. Use of red lights on front of vehicles
prohibited; exceptions. - It shall be unlawful for any
person to drive upon the highways of this State any
vehicle displaying red lights visible from the front of
said vehicle. The provisions of this section shall not
apply to police cars, highway patrol cars, vehicles
owned by the Wildlife Resources Commission and
operated exclusively for law-enforcement purposes,
ambulances, fire-fighting vehicles, school buses, a
vehicle operated in the performance of his duties or
services by any member of a municipal or rural fire
department, paid or voluntary, or vehicles of a
voluntary life-saving organization that have been
officially approved by the local police authorities and
manned or operated by members of such organization
while on official call or vehicles operated by medical
doctors and anesthetists in emergencies or to such
lights as may be prescribed by the Interstate
Commerce Commission. The provisions of this section
shall not apply to motor vehicles used in law
enforcement by the sheriff or any salaried deputy
sheriff or salaried rural policeman of any county,
regardless of whether or not the vehicle is owned by
the county."
Rufus L. Edmisten, Attorney General
William W. Melvin
Assistant Attorney General
8 July 1975
Subject: Motor Vehicles; Requirements; Bikes with
Helper Motors
Requested by: Colonel E. W. Jones
Commander
N. C. State Highway Patrol
Question: Must a pedal bicycle with a helper motor
having a speed capacity in excess of 20
miles per hour meet the requirements of
a motorcycle?
Conclusion: Yes.
G.S. 20-50.1 specifically requires that such vehicles be incapable of
exceeding 20 miles per hour in order to be exempt from all title
and registration requirements of Chapter 20. Unless this standard
is met, then the vehicle cannot be exempt and would be treated
as a motorcycle.
Likewise, such a bicycle must meet the operation and equipment
standards of a motorcycle if it can exceed the speed of 20 miles
per hour. The definition of a motorcycle under G.S. 20-4.01 (27)d,
as amended by 1975 Amendment, Chapter 94, exempts bicycles with
helper motors only if their maximum speed is 20 miles per hour.
Otherwise, they shall be classified as motorcycles and subject to
all the requirements in Chapter 20 that concern motorcycles.
Rufus L. Edmisten, Attorney General
William W. Melvin
Assistant Attorney General
11 July 1975
Subject: Motor Vehicles; Driver's License; Bikes
with Helper Motors
Requested by: Ms. Sarah F. Patterson
Assistant District Attorney
Seventh Solicitorial District
Question: Is a motor vehicle operator's license
required to operate a bike equipped with
a helper motor of less than one brake
horsepower on the highways and streets?
Conclusion: No.
Chapter 859 of the 1975 Session Laws of North Carolina amends
G.S. 20-4.01(23) and G.S. 20-8 and effectively exempts persons
over the age of 16 years from the driving license requirements.
The pertinent portions of G.S. 20-4.01(23) and G.S. 20-8, after
amendment, read as follows:
"§ 20-4.01. Definitions. -Unless the context
otherwise requires, the following words and phrases,
for the purpose of this Chapter, shall have the
following meanings:
* * *
(23) Motor Vehicle.-Every vehicle which is
self-propelled and every vehicle designed to run upon
the highways which is pulled by a self-propelled
vehicle. This shall not include bicycles with helper
motors rated less than one brake horsepower which
produce only ordinary pedaling speeds up to a
maximum of 2.0 miles per hour."
"§ 20-8. Persons exempt from license -The
following are exempt from license hereunder:
(7) Any person who is at least 16 years of age and
while operating a bicycle with a helper motor rated
-4-
less than one brake horsepower which produces only
ordinary pedaling speeds up to a maximum of 20 miles
per hour."
This opinion modifies the prior Opinion of this office dated 8 May
1975 to Ms. Sarah F. Patterson, Assistant District Attorney, Seventh
Solicitorial District, insofar as same held that a motor vehicle
operator's license was required to operate bicycles with helper
motors.
It should be noted that operators of bicycles with helper motors
are subject to the rule of the road as set forth in Chapter 20 of
the North Carolina General Statutes, except those rules which by
their nature can have no application.
Rufus L. Edmisten, Attorney General
William W. Melvin
Assistant Attorney General
15 July 1975
Subject:
Requested by:
Question:
Conclusion:
Public Officers and Employees; Double
Office Holding; Appointment to County
Board of Social Services of Individual Who
is Member of County Board of Education
and Municipal Employee
Mr. Michael S. Kennedy
Attorney for Cleveland County
Department of Social Services
May an elected member of the school
board of a county who is also a regular
employee of a municipality within the
county be appointed as a member of the
County Board of Social Services?
Absent a conflict of interest under
G.S. 14-234, the individual described may
-5-
be appointed as a member of the county
board of social services.
Inasmuch as G.S. 128-1.1, inter alia, permits concurrent holding of
an elective and appointive office, place of trust or profit, this
question was apparently posed due to the individual's employment
by the municipality. The main concern here appears to be whether
this individual's regular employment for compensation can be
construed as a "...place of trust or profit" in local government.
The terminology "office" and "place of trust or profit", as found
in the State Constitution and statutes, are in all essential respects
identical. Groves v. Barden, 169 N.C. 8 (1915). The terms are
designed to denote positions occupying the same level of dignity
and importance, with the latter terminology being utilized to prevent
evasion resulting from attributing overly technical meaning to the
word "office". State ex rel Wooten v. Smith, 145 N.C. 476 (1907).
Thus, in determining if the position in question here is a place of
trust or profit, the following language of the Supreme Court of
North Carolina would be applicable:
"Our Court is in line with the current of authority,
having adopted and approved the definition of an
office, that it is 'a public position to which a portion
of the sovereignty of the country, either legislative,
executive, or judicial, attaches for the time being, and
which is exercised for the benefit of the public,' and
saying further: ' The most important characteristic
which distinguishes an office from a public agency is
that the conferring of the office carries with it a
delegation to the individual of some of the sovereign
functions of the Government.' S. v. Smith, 145 N.C,
477. If, therefore, there is no constitutional
classification of offices and employments, and a duty
is imposed upon the incumbent of a position which
requires him to perform a legislative, executive, or
judicial act, he is a public officer, and otherwise an
employee; and in determining the nature of the duty,
the fact that the lawmaking power may have declared
the position an office or an employment, although not
conclusive, is entitled to consideration." Groves v.
Barden, supra, at pages 9-10.
If, under the above guidelines, the individual concerned can be
realistically classified as an employee, then his appointment to the
county board of social services falls outside the prohibition on dual
office holding set forth in G.S. 128-1.1. Of course, care should be
exercised to insure that this appointment will not fall afoul of the
proscription against conflict of interest as contained in G.S. 14-234.
Rufus L. Edmisten, Attorney General
William F. O'Connell
Assistant Attorney General
15 July 1975
Subject: Mental Health; Courts; Infants and
Incompetents; Voluntary Admission of a
Minor to a Treatment Facility
Requested by:
Question:
Conclusion:
Dr. N. P. Zarzar
Director
Division of Mental Health Services
Department of Human Resources
Does the United States Supreme Court
Decision in O'Connor v. Donaldson ,
U.S. , 43 L.W. 4929 (1975) require
a finding that a minor is dangerous to
himself or others in order to justify his
retention in a treatment facility pursuant
to G.S. 122-56.7?
The United States Supreme Court Decision
in O'Connor v. Donaldson, U.S.
, 43 L.W. 4929 (1975) does not
require a finding that a minor is dangerous
to himself or others in order to justify his
retention in a treatment facility pursuant
to G.S. 122-56.7.
-7-
Article 4, North Carolina General Statutes, provides for voluntary
admission to a treatment facility upon application by an individual
who "is in need of treatment for mental illness or inebriety." See
G.S. 122-56.3. In the case of a minor, the application for admission
is made by a parent, person standing in loco parentis, or guardian.
G.S. 122-56.5.
While not altering the statutory provisions for voluntary admission
of minors, the 1975 General Assembly enacted the following
legislation (effective July 1, 1975) further protecting minors:
"§ 122-56.7. Judicial determination .-(a) A
hearing shall be held in district court in the county
in which the treatment facility is located within 10
days of the day a minor or a person adjudicated non
compos mentis is admitted to a treatment facility
pursuant to G.S. 122-56.5.
(b) The court shall determine whether
(1) such person is mentally ill or
inebriate and
(2) is in need of further treatment at
the treatment facility.
(c) The initial hearing and all subsequent
proceedings shall be governed by the involuntary
commitment procedures of Chapter 122, Article
5A of the General Statutes. Provided that in a
case involving an indigent respondent, located
at a regional psychiatric facility for the care and
treatment of the mentally ill and inebriate,
special counsel authorized by G.S. 122-58.12
shall act as his counsel at the initial hearing."
While providing the additional procedural safeguards afforded in
involuntary commitment cases, the General Assembly clearly did not
intend to require a finding of dangerousness in order to retain a
voluntarily admitted minor in a treatment facility. However, with
the advent of the decision in O 'Connor v. Donaldson (decided June
-8-
26, 1975), apparently concern has arisen as to the standards set
forth in the new statute. More specifically, the position has been
advanced in some circles that, in order to justify retention of a
minor in a treatment facility, there must be a finding of
dangerousness, in addition to or as opposed to the fundamental
findings of mental illness or inebriety and need for treatment.
Close reading of the decision in O'Connor reveals that the author
of the majority opinion took great pains to point out the following
limitations on the applicability of the decision:
"We need not decide whether, when, or by what
procedures, a mentally ill person may be confined by
the State on any of the grounds which, under
contemporary statutes, are generally advanced to
justify involuntary confinement of such a person-to
prevent injury to the public, to ensure his own survival
or safety, or to alleviate or cure his illness....
* * *
A finding of 'mental illness' alone cannot justify
a State's locking a person up against his will and
keeping him indefinitely in simple custodial
confinement. Assuming that that term can be given
a reasonably precise content and that the 'mentally
ill' can be identified with reasonable accuracy, there
is still no constitutional basis for confining such
persons involuntarily if they are dangerous to no one
and can live safely in freedom....
In short, a State cannot constitutionally confine
without more a nondangerous individual who is
capable of surviving safely in freedom by himself or
with the help of willing and responsible family
members or friends...." (Emphasis supplied)
Initially, of course, the O'Connor decision dealt with an adult.
Notwithstanding the present trend toward recognition of the rights
-9-
of minors-to include such constitutional rights as equal protection
and due process-it is generally recognized that some variations from
those rights as afforded adults is necessary and desirable. Cf.
McKeiver v. Pennsylvania, 403 U.S. 528 (1971). In the present
context, several very valid bases for different standards for the
admission of minors to treatment facilities readily come to mind.
Among these are the necessity to provide hospitalization and
treatment for the mentally ill who are too young to seek or obtain
help for themselves, the parental interest in and, indeed, legal
responsibility for obtaining help for mentally ill children regardless
of a child's recognition of such need, and the therapeutic desirability
of affording mental health care at an early age so as to enhance
the possibility of its success.
The need for separate rules for voluntary admission of children is
emphasized by the basic fact that, absent separate provisions tailored
to the needs of juveniles, unwilling children who are mentally ill
and in need of treatment but whose situations are not so aggravated
that they are "dangerous to themselves or others" would not be
accorded the needed in-patient treatment. This would be true despite
the intelligent and informed conclusions of "willing and responsible
family members" that a child is desperately in need of treatment
or his mental illness.
Finally, the Supreme Court unequivocally pronounced that
O'Connor is authority only for a situation involving "not involuntary
treatment but simply involuntary custodial confinement." See
opinion cited, footnote 10. Significantly, within this context, the
North Carolina Statutes require: (a) a judicial finding that the minor
is in need of further treatment at the treatment facility
(G.S. 122-56.7); (b) full protection of the minor's rights at the
judicial hearing and the mandated periodic judicial rehearings
(G.S. 122-56.7 and G.S. 122-58.7); (c) appropriate mental and
physicial treatment while the minor is in the facility
(G.S. 122-55.6); and (d) justification for any restriction upon the
exercise of the minor's statutorily guaranteed civil rights during the
treatment period (G.S. 122-55.14). Thus, it is obvious that the
statutory provision for treatment of minors under consideration here
is something totally different from the involuntary custodial
confinement addressed by the recent Supreme Court Decision.
-10-
Rufus L. Edmisten, Attorney General
William F. O'Connell
Assistant Attorney General
2.2 July 1975
Subject:
Requested by:
Questions:
Conclusions:
Mental Health; Voluntary Admissions;
Requirement for Rehearings for Minors and
Persons Adjudicated Non Compos Mentis;
Requirement for a Hearing Under
G.S. 122-56.7 When Patient in a
Treatment Facility Is Adjudicated Non
Compos Mentis
Mr. John L. Pinnix
Special Counsel
Broughton Hospital
(1) When a patient at a North Carolina
treatment facility falls within the
provisions of G.S. 122-56.7, are the
rehearings described in G.S. 122-58.11
required in order to retain him in the
treatment facility longer than ninety days?
(2) When a patient has been voluntarily
admitted to a North Carolina treatment
facility and subsequently is adjudicated
non compos mentis and a guardian
appointed under G.S. 35-3, must a hearing
be held in accordance with G.S. 122-56.7?
(1) Yes.
(2) Yes.
G.S. 122-56.7 requires that a district court hearing be held within
ten days after the voluntary admission to a treatment facility of
a minor or a person who has been adjudicated non compos mentis.
-11-
Subsection (c) of this statute further provides as follows:
"The initial hearing and all subsequent proceedings
shall be governed by the involuntary commitment
procedures of Chapter 122, Article 5A of the General
Statutes...." (Emphasis supplied)
This language makes it clear that the General Assembly intended
that the G.S. 122-58.11 requirement for periodic rehearings in
involuntary commitment proceedings be equally applicable to the
individuals described in G.S. 122-56.7.
G.S. 122-56.3 requires the discharge of any voluntarily admitted
patient within seventy-two hours of his written request therefor.
The obvious purpose behind G.S. 122-56.7 is to protect minors and
those adjudicated non compos mentis who have already been
admitted to a treatment facility from any unnecessary or unduly
prolonged detention. This protection can only be provided by
affording the same type of hearing to the patient who is adjudicated
non compos mentis after, rather than before, admission to a
treatment facility.
Rufus L. Edmisten, Attorney General
William F. O'Connell
Assistant Attorney General
2.2 July 1975
Subject: Department of Human Resources;
Appointment of Director of Youth Services
Requested by: Mr. David P. Dickey
Acting Director of Planning
Division of Youth Development
N. C. Department of Correction
Question: Must the procedures set forth in
G.S. 134-10 be followed in order to
appoint the Director of Youth Services?
-12-
Conclusion: Yes.
In Chapter 742, 1975 Session Laws, the General Assembly acted
to completely separate the "administration of training schools for
committed delinquents from the adult correction system."
G.S. 134-1. The General Assembly elected not to transfer the
Division of Youth Services (the component part of the Department
of Corrections which had previously been the responsible agency)
intact by a Type II transfer under G.S. 143A-6. Instead, the method
iof separation was via transfer of all physical facilities, equipment,
supplies, personnel, etc., to the Department of Human Resources.
See G.S. 134-6.
The new legislation then went on to provide for the areas and
method of operation of this function and delineated the
responsibilities for the operation. A Commission of Youth Services
iwas created to serve specified functions within the Department of
Human Resources. G.S. 134-3 through G.S. 134-9. Also created was
a position of Director of Youth Services, with the manner of
appointment to this position and the duties to be performed by
the incumbent being set forth with great specificity. See G.S. 134-10
through G.S. 134-14.
Apparently some consideration has been given as to whether the
prior Director of Youth Development could automatically be
xmsidered as transferred to the new position of Director of Youth
Services. In view of the method of transfer used by the General
Assembly and the specific selection procedures prescribed in
p.S. 134-10, that statute must be complied with in the appointment
bf an individual to this newly created position of Director of Youth
Services.
Rufus L. Edmisten, Attorney General
William F. O'Connell
Assistant Attorney General
3 July 1975
ubject: Health; Ground Absorption Sewage
Disposal System Act of 1973; Article 13C
-13-
Requested by:
Question:
of Chapter 130; Adoption of Rules and
Regulations by Local Boards of Health;
Effect of Rules and Regulations Adopted
by the Commission for Health Services
Mr. Howard B. Campbell, M. P. H.
Director
Pasquotank-Perquimans-Camden-Chowan
District Health Department
May the rules and regulations of a local!
board of health permit the installation of
a septic tank system or an alternative
ground absorption sewage disposal system
in soil which has been determined to be
"unsuitable"?
Conclusion: The rules and regulations of a local board
of health may permit the installation of aj
septic tank system or an alternative ground
absorption sewage disposal system in soil
classified as "unsuitable" if such 1
installation will not have a detrimental
effect on the public health. However, after
the effective date of the rules and
regulations of the Commission for Health I
Services governing sewage disposal, the
provisions of such rules may apply.
The General Assembly declared in the preamble to the Ground:
Absorption Sewage Disposal System Act of 1 973 (codified as Article
13C of the General Statutes' Chapter 130) that:
"...continued installation, at a rapidly and constantly
accelerating rate, of septic tanks and other types of
ground absorption sewage disposal systems in a faulty
or improper manner and in areas where unsuitable soil
and population density adversely affect the efficiency
and functioning of these systems has a detrimental
effect on the public health through contamination of
the groundwater supply....the General Assembly
14-
intends hereby to insure the regulation of ground
absorption sewage disposal systems so that such
systems may continue to be used, where appropriate,
without jeopardizing the public health."
The General Assembly provided in section 5(b) of the Act (codified
as G.S. 130-1 66.25(b)) that:
"The local health department shall issue an
improvements permit authorizing work to proceed and
the use of a septic tank or other ground absorption
disposal system when it has determined, after a field
investigation of the area, including such factors as
character and porosity of soil, percolation rate,
topography, depth to water table and rock or other
impervious formations and location or proposed
location of any water supply wells, that such a system
can be installed at the site in compliance with the rules
and regulations of the local board of health governing
such installations;...."
..
The ground Absorption Sewage Disposal Act recognizes that ground
- ibsorption sewage disposal can be rendered ecologically safe" and
l"will continue to be necessary for the adequate and economic
Ihousing of an expanding population," provides a procedure for
obtaining an improvements permit and a certificate of completion,
stipulates the factors to be considered before issuance of an
Improvements permit, and entrusts issuance of the improvements
permit to the local health department upon compliance with the
i§ules and regulations of the local board of health. Therefore, the
-egulation of the installation and use of ground absorption sewage
jlisposal systems rests ultimately on the rules and regulations of the
local board of health. The question presented herein is whether or
hot State law requires the rules and regulations of local boards of
lealth concerning ground absorption sewage disposal systems to
provide a minimum criteria for issuance of an improvements permit
iind, ultimately, whether or not State law requires the local boards
pf health to adopt rules and regulations in the first instance
concerning ground absorption sewage disposal systems.
j.S. 130-17 sets forth the powers and duties of local boards of
lealth. "The local boards of health shall have the immediate care
-15-
and responsibility of the health interests of their city, county or
district." "The local boards of health shall make such rules and
regulations, not inconsistent with law, as are necessary to protect
and advance the public health." The quoted provisions of
G.S. 130-17 make it clear that the local boards of health are given
the primary duty to protect the public health within their
jurisdictions and the power to make rules and regulations to fulfill
this duty. The second quoted provision not only confers but also
mandates the exercise of this rule-making authority "when necessary
to protect and advance the public health." The delegation of any
rule-making authority confers the discretion to adopt rules and
regulations in accordance with standards provided by the legislature.
The discretion of a local board of health under G.S. 130-17 pertains
to, first, whether the public health requires the adoption of rules
and regulations on a particular matter and, second, to what extent
does the public health require regulation of the particular matter.
If the protection and the advancement of the public health require
regulation of a particular matter, then the local board of health
shall make such rules and regulations.
The General Assembly has found that continued installation of
ground absorption sewage disposal systems in a faulty or improper
manner or in areas of unsuitable soil or population density has a;
detrimental effect on the public health. The General Assembly
expressed its intent that the Ground Absorption Sewage Disposal
Act insure the regulation of ground absorption sewage disposa
systems. This regulation, as noted previously, is predicated on rules
and regulations adopted by the local boards of health. Consequently
it is the opinion of this Office that the Ground Absorption Sewage
Disposal System Act of 1973 and the provisions of G.S. 130-n
mandate the adoption of rules and regulations concerning ground
absorption sewage disposal systems. Such rules and regulations have
been found by the General Assembly to be necessary to protect
and advance the public health.
The question remains, however, whether the rules and regulations
adopted by the local board of health, may permit the installatior
of a septic tank system in a soil classified as "unsuitable." It ha:
been noted that the authority and responsibility to adopt regulation
includes the discretion to determine the extent and content of th<
regulation adopted. The Act stipulates the factors to be considered
-16-
establishes the protection of the public health as the polar star for
the regulations, but entrusts specific determinations to the local
lealth department in accordance with the rules and regulations of
the local board of health. Therefore, the local board of health,
:hrough its rules and regulations, may determine that the installation
}f a septic tank system or an alternative ground absorption sewage
lisposal system in a soil classified as "unsuitable is permissible when
he application of the latest advancements in sanitation engineering
md the results of appropriate engineering, hydrogeological and soil
tudies on the particular tract of land demonstrate that the operation
)f the ground absorption sewage disposal system will satisfy the
;eneral requirements of the rules and regulations and will not have
. detrimental effect on the public health. This judgment has been
ntrusted to the discretion of the local boards of health.
must be noted that the Act in 5(b) (codified as
!j.S. 130-1 66.25(b)) provides that it "does not limit or interfere
rith the authority of the Department of Human Resources to adopt
nd enforce reasonable rules and regulations under authority of
ij.S. 130-160." G.S. 130-160 authorizes the Commission for Health
lervices to adopt rules and regulations governing sewage disposal
ystems with 3,000 gallons or less design capacity.
'he Commission for Health Services has recently exercised the
uthority conferred by G.S. 130-160 and adopted Rules and
Regulations Governing the Disposal of Sewage from any Residence,
dace of Business or Place of Public Assembly in North Carolina.
Tiese rules and regulations will become effective, after adoption
fly the Environmental Management Commission, on September 1,
'975, Part I, Section IVB3 of the rules and regulations provide:
"Sites classified as UNSUITABLE shall not be used
for soil absorption disposal systems, unless engineering,
hydrologic, and soil studies indicate to the State or
local agency that a suitable septic tank system or a
suitable alternate system can reasonably be expected
to function satisfactory."
nijr.S. 130-1 7(b) provides that the rules and regulations of local
dfOards of health may be more stringent, but not less stringent, than
lose of the Commission for Health Services where an emergency
-17-
or a peculiar local condition or circumstance so require; otherwise
the rules and regulations of the Commission for Health Service
prevail where there is a conflict between rules of the Commission
and rules of the local board of health. Therefore, it is apparen
that, except where an emergency or a peculiar local condition o
circumstance exists, the provisions of Part I, Section IVB3 wil
prevail over conflicting local rules. These provisions will also appl
where local rules do not address the question. Consequently, afte
the effective date of the new rules and regulations of the Commissioi
for Health Services, the provisions of Part I, Section IVB3 wil
except in limited instances, determine when a septic tank syster
or an alternative ground absorption sewage disposal system may b
installed in soils classified as "unsuitable."
Rufus L. Edmisten, Attorney General
Robert R. Reilly
Associate Attorney
23 July 1975
Subject:
Requested by:
Question:
Conclusion:
'ii-
Mental Health; Mental Health Clinia
Expenditure of Fees Collected for Service
by Local Mental Health Clinics
Mr. R. J. Bickel
Assistant Director for Administration
Division of Mental Health Services
N. C. Department of Human ResourcesWei
Is there any limitation on the expenditui
of funds which have been collected as fetf
for services rendered by local mental healt
clinics?
Fees for services rendered which have beep
collected by local mental health clinics ma
be expended only for the fiscal operatic
of the local mental health authority.
•18-
ij.S. 122-35.10 provides for the collection of fees for services
endered by local mental health clinics. The duty and obligation
p effect this type of collection and the legislative intent behind
Jie statutory requirements for the collections have been discussed
n a previous opinion of this Office. See opinion of the Attorney
jeneral to Mr. R. J. Bickel, Assistant Director for Administration,
)ivision of Mental Health Services, dated 13 May 1975, 44 N.C.A.G.
28.
| addressing the subject of the disposition of the fees which are
ollected, G.S. 122-35.10 provides:
"The fees to be charged are to be fixed by the local
mental health authority and all funds so collected shall
be utilized for the fiscal operation of the local mental
health authority."
his unequivocal language permits no doubt as to circumscribed
tnits placed upon the use of the fees collected by local mental
salth clinics.
Rufus L. Edmisten, Attorney General
William F. O'Connell
Assistant Attorney General
August 1975
abject:
squested by:
nluestions
in
iti l
Motor Vehicles; Drivers' Licenses; Limited
Driving Privilege; Effective Date, Cases to
Which Act Applies
Honorable William H. McMillan
N. C. House of Representatives
(1) Does this act apply to offenses
committed before its effective date in
which the trial is held after the effective
date?
-19-
(2) Does the act apply to cases in whicl
the offense occurred and the trial was heh
before the effective date and in which n(
appeal was taken?
(3) Does the act apply to cases when
the offense occurred and trial was held ii
the district court before the effective date
and in which an appeal to the superioj
court was pending on the effective date o\
the act?
1
(4) Does the act apply to cases in whicl) m
the offense occurred, trial in the district ii
court and in the superior court were helr driving while under the influence. Harrell v. Scheidt, 243 N.C.
B5 (1956), Joyner v. Garrett, Comr. of Motor Vehicles, 279 N.C.
126 (1971). Likewise the allowance of a limited driving privilege
fould not appear to be a part of the punishment for the offense.
Nonetheless these matters are direct effects of the conviction and
I closely related to it that the principles of State v. Pardon, 272
l.C. 72 (1967) are considered analogous. Therein it is said:
"Statutes are frequently adopted which change
the degree and kind of punishment to be imposed for
a criminal act.
The legislature may always remove a burden
imposed upon citizens for State purposes....
An amendatory act which imposes a lighter
punishment can be constitutionally applied to acts
committed before its passage.
-21-
When the Legislature amends a statute so as to lessen
the punishment it has obviously expressly determined
that its former penalty was too severe and that a
lighter punishment is proper as punishment for the
commission of the prohibited act. It is an inevitable
inference that the Legislature must have intended that
the new statute imposing the new lighter penalty now
deemed to be sufficient should apply to every case
to which it constitutionally could apply....
* * *
'As to a mitigation of penalties, then, it is safe to
assume, as the modern rule does, that it was the
legislative design that the lighter penalty should be
imposed in all cases that subsequently reach the
courts."'
No court has the authority to change or modify its judgment aft'
the terms in which it was rendered has expired. State v. WarreA
92 N.C. 825 (1885), State v. McLeod, 222 N.C. 142 {\9A\);Sta\
v. Lawrence, 264 N.C. 220 (1965); N.C.A.G. Opinion, 12/18/6
Ralph L. Howland, North Carolina Commissioner of Motor Vehicle
In State v. Pardon, 272 N.C. 72 (1967), it is said:
"After a defendant, who did not appeal, has begun
serving his sentence, a change or repeal of the law
under which he was convicted does not affect his
sentence absent a retrospective provision in the
statute."
Chapter 763 contains no retrospective provision.
iii
An appeal from an inferior court to the superior court nullifies t] id
action of the inferior court; it "completely annuls" the judgmeifiitli
State v. Goff, 205 N.C. 545 (1933); State v. Meadows, 234 N.
657 (1951); State v. Broome, 269 N.C. 661 (1967); State v. Stille
4 N.C. App. 638 (1969); State v. McCluney, 280 N.C. 404 (197:!
The term "conviction" in the motor vehicle laws means a "fir
conviction". G.S. 20-24(c). In this situation, there is no fir
-22-
:onviction and the superior court is not restricted in its actions in
:he matter. However, the jurisdiction of the inferior court which
•endered judgment is at an end and it cannot alter its judgment
n the matter.
Hie appeal to the Appellate Division ousts the jurisdiction of the
uperior court and the superior court can issue no substantive orders
in the matter so long as a court of the Appellate Division retains
urisdiction. Clark v. Cagle, 226 N.C. 230 (1946).
f the Appellate Division affirms the judgment appealed from, the
uperior court is thereafter customarily powerless to enter any
udgment other than that affirmed. The decision of the Appellate
)ivision effectively ends the matter although it is the custom to
nter a pro forma judgment in superior court after certification of
he decision; however, in light of the holding in State v. Spencer,
;76 N.C. 535 (1970), it would appear that a request could be made
[Upon entry of the pro forma judgment in the trial court for a limited
n riving permit as it would be to the benefit of the licensee.
"It is the practice of the superior court to enter
judgment in accordance with the opinion of this
Court-a practice which should be continued in the
interest of clarity, continuity, and for the convenience
of those who may examine the records thereafter-,
but the efficacy of our mandate does not depend upon
the entry of an order by the court below. Where such
an order has been entered it 'neither added to nor
took from the rights of either party.' Strickland v.
Jackson, 260 N.C. 190, 191, 132 S.E. 2d 338, 339."
D & W. Inc., v. Charlotte, 268 N.C. 720 (1966).
on the other hand, the conviction is reversed, and a new trial
granted, the defendant, if convicted at the new trial, would be
ititled to the benefit of the act, if in the discretion of the trial
dge, he is considered deserving.
Rufus L. Edmisten, Attorney General
William W. Melvin
Assistant Attorney General
-23-
5 August 1975
Subject:
Requested by:
Question:
Conclusion:
Social Services; Adoptions; Chapter 335 o
the 1975 Session Laws; Act to Prohibit tht
Buying and Selling of Children foi
Adoption and to Prohibit Advertisement!
Soliciting Children for Adoption
Dr. Renee P. Hill, Director
Division of Social Services
Department of Human Resources
Under Chapter 335 of the 1975 Sessior1
Laws, effective July 1, 1975, prohibiting
the buying and selling of children foil
adoption, may prospective adoptive parents
pay the transportation expenses to Nortr'
Carolina as well as all medical costs
incident to the birth of the child of ari
expectant mother residing in another states
who is considering placing her baby foil
adoption with this couple?
Prospective adoptive parents who entei< i
into the above type of financial:
arrangement with an expectant mothei
pursuant to an independent adoption
placement expressly violate the provisions
of Section 1, Chapter 335 of the Sessionii
Laws of 1975 prohibiting the buying and!
selling of children for adoption.
n
Section 1 of Chapter 335 of the 1975 Session Laws, effective Jul)
1, 1975, provides:
"No person, agency, association, corporation,
institution, society or other organization, except a
licensed child-placing agency as defined by
G.S. 48-2(2), or a county department of social
services, shall offer or give, charge or accept any fee,
compensation, consideration or thing of value for
-24-
receiving or placing, arranging the placement of, or
assisting in placing or arranging the placement of, any
child for adoption..../!^ person who violates any
provision of this section shall be guilty of a
misdemeanor, and upon conviction or plea of guilty
shall be fined or imprisoned or both at the discretion
of the court.... " (Emphasis supplied)
The specific factual situation posed involves an expectant mother,
residing in another state, who is considering placing her baby for
adoption independently with a North Carolina family. The
prospective adoptive parents are proposing to pay for the woman's
transportation to North Carolina as well as her room, board, and
medical care after she arrives. The inquiry is as to whether this
arrangement would fall within the purview of the proscription
against buying and selling children for adoption as set forth in
Chapter 335.
In our opinion the type of arrangement contemplated in this case
is clearly violative of the provisions of Section 1 of Chapter 335.
Is there any real doubt that the prospective adoptive parents are
offering or giving compensation, consideration or a thing of value
ito the expectant mother for receiving her child for adoption? We
think not.
5 August 1975
Subject:
Requested by:
Rufus L. Edmisten, Attorney General
William Woodward Webb
Assistant Attorney General
Mental Health; Voluntary Admissions;
Release From Treatment Facility of a
Minor or an Incompetent Prior to or After
a Judicial Hearing Under G.S. 122-56.7
Mr. R. J. Bickel
Assistant Director for Administration
Division of Mental Health Services
N. C. Department of Human Resources
-25-
Questions: In the case of a child (or person
adjudicated non compos mentis) who is
admitted to a treatment facility pursuant
to G.S. 122-56.5:
(1) Can the parent or guardian request
and obtain the release of the patient prior
to the hearing required by G.S. 122-56.7?
(2) Can the parent or guardian request
and obtain the release of the patient after
the hearing under G.S. 122-56.5 when the
court has determined that the patient is
mentally ill or inebriate and is in need of
further treatment at the treatment facility?
(3) If the patient is released from the
treatment facility before the hearing under
j
G.S. 122-56.5 must the hearing still be
conducted?
Conclusions: In the situations described:
(1) The parent or guardian can request
and obtain the release of the patient.
(2) The parent or guardian cannot
obtain the release of the patient contrary
to the court order.
(3) The hearing is not required to be
convened.
!
Article 4 of Chapter 122 of the General Statutes permits the
voluntary admission of a minor or an incompetent into a North
Carolina treatment facility upon application by responsible parent,
guardian, etc. In these instances, however, G.S. 122-56.7 requires
a judicial hearing within ten days of admission. This hearing is
patently designed to protect the minor or incompetent from being
improperly restrained in the treatment facility if that degree of
restraint is not therapeutically necessary.
-26-
Since the parent or guardian, as applicable, is still the person
basically responsible for the welfare of the patient, he may authorize
the release of the patient prior to the judicial hearing. Patently,
in that situation, since there is no longer any restraint imposed upon
the patient, the question of the propriety of the restraint is moot;
thus, no hearing is required.
However, once the court has conducted a hearing and has ordered
inpatient treatment, the court order is controlling on that question.
Thereafter, discharge of the patient from the treatment facility is
governed by the provisions of Article 5 A, Chapter 122.
Rufus L. Edmisten, Attorney General
William F. O'Connell
Assistant Attorney General
5 August 1975
Subject
Mental Health; Involuntary Commitment;
Interstate Compact on Mental Health;
Transfer of Mental Patient to a State Not
Having Same Due Process Requirements As
North Carolina
Requested by:
Question
Conclusion
Mr. John L. Pinnix
Special Counsel
Broughton Hospital
Under G.S. 122-99 (Interstate Compact on
Mental Health), may the State of North
Carolina constitutionally transfer an
inpatient involuntarily committed under
the provisions of G.S. 122-58.1 through
G.S. 122-58.18 to another state not having
equivalent due process safeguards in the
form of requirements for mandatory,
periodic judicial rehearings?
The transfer described is not prohibited
although the existence of adequate due
-27-
process safeguards in the receiving state
should be an important factor for
consideration in determining the
appropriateness of the transfer of the
patient.
G.S. 122-58.1 through G.S. 122-58.18 provide for the involuntary
commitment in North Carolina of individuals who are mentally ill
or inebriates and who are dangerous to themselves or others; among
other statutorily provided due process safeguards are the
requirements for regular and periodic rehearings as a prerequisite
to continuing these individuals in an inpatient status. Through the
Interstate Compact on mental health (codified as G.S. 122-99)
North Carolina has agreed with other subscribing states as to the
basis rules governing the interstate transfer of patients where this
action is appropriate.
The self pronounced intent and purpose behind the Compact is as
follows:
"The party states find that the proper and
expeditious treatment of the mentally ill and mentally
deficient can be facilitated by cooperative action, to
the benefit of the patients, their families, and society
as a whole.... Consequently, it is the purpose of this
Compact and of the party states to provide the
necessary legal basis for the institutionalization or
other appropriate care and treatment of the mentally
ill and mentally deficient under a system that
recognizes the paramount importance of patient
welfare and to establish the responsibilities of the
party states in terms of such welfare." (Article I of
the Compact).
In addressing the subject of transfer of persons needing inpatient
treatment, Article III of the Compact contains the following
significant language:
"...any patient may be transferred to an institution
in another state whenever there are factors based upon
clinical determinations indicating that the care and
-28-
treatment of said patient would be facilitated or
improved thereby.... The factors referred to in this
paragraph shall include the patient's full record with
due regard for the location of the patient's family,
character of the illness and probable duration thereof,
and such other factors as shall be considered
appropriate."
Nowhere in the Compact or in any of the General Statutes of North
Carolina is there a requirement that the receiving state must have
statutes identical to or equivalent to those of the sending state. It
would appear that the usual situation wherein consideration is given
to an interstate transfer involves a proposal to transfer the patient
to his state of permanent residence or to an area where he will
be near family or friends. In weighing the pros and cons of an
individual transfer, the therapeutic value of the transfer, the
projected duration of the inpatient status, and the due process
protection afforded the patient in the receiving state are all valid
factors for consideration in arriving at a decision as to the course
which will be most likely to insure the particular patient's welfare.
Rufus L. Edmisten, Attorney General
William F. O'Connell
Assistant Attorney General
8 August 1975
Subject
Requested by:
Question
Prisons and Prisoners; Paroles; Parole
Eligibility
Mr. Jack Seism, Chairman
North Carolina Parole Commission
May the Parole Commission grant parole to
persons who have served less than
one-fourth of their sentence?
Conclusion: No.
N.C.G.S. 148-58 provides:
-2.9-
"All prisoners shall be eligible to have their cases
considered for parole when they have served a fourth
of their sentence, if their sentence is determinate, and
a fourth of their minimum sentence, if their sentence
is indeterminate; provided, that any prisoner serving
sentence for life shall be eligible for such consideration
when he has served 70 years of his sentence. Nothing
in this section shall be construed as making mandatory
the release of any prisoner on parole, but shall be
construed as only guaranteeing to every prisoner a
review and consideration of his case upon its merits."
If the Legislature intended that the Parole Commission could release
an inmate at any time after commitment, why did it provide for
determinate and indeterminate sentences, and why did it provide
for eligibility upon service of a fourth of a minimum sentence, or
after twenty years of a life sentence, which is a fourth of the
eighty -year definition of a life sentence, G.S. 14-2? If the
construction were adopted that the Parole Commission could release
an inmate at any time after commitment, all sentences would be
indeterminate - one day to the maximum imposed by the court,
and there would be no reason for a minimum sentence, and the
sentencing court would, in effect, be imposing a maximum sentence
which would automatically become indeterminate under the
construction proposed in this inquiry.
The reason and language of G.S. 148-58 can only point to one
conclusion, and that is that a prisoner must serve one fourth of
his sentence before the Parole Commission has jurisdiction over his
person and the authority to release him on parole.
We are therefore of the opinion that G.S. 148-58 grants the Parole
Commission the power to parole inmates only after the inmate has
served one fourth of his sentence.
Rufus L. Edmisten, Attorney General
Jacob L. Safron
Special Deputy Attorney General
-30-
8 August 1975
Subject
Requested by:
Question
Conclusion:
Motor Vehicles; Registration; Transfer of
Title
Mr. E. B. Borden Parker
County Attorney
Wayne County
May a title of a motor vehicle be
transferred without the purchaser applying
to the Department of Motor Vehicles for
a new certificate of title?
Yes.
The 1963 amendment was a complete rewrite of G.S. 20-72(b). The
decisions of Insurance Company v. Insurance Company, 276 NC 243,
172 SE 2d 55 (1970) and Younts v. Insurance Company, 281 NC
582, 189 SE 2d 137 (1972) involve the interpretation of the statute
as it was before 1963. It was noted in both cases, however, that
the 1963 amendment changed the requirements.
Specifically, the 1963 amendment deleted the requirement that
application for certificate of title be made by the transferee before
ownership to the vehicle passes. Insurance Co. v. Hayes, 276 NC
620, 174 SE 2d 511 (1970). No further amendments have affected
this change. Thus, a title of a motor vehicle may pass without making
an application to the Department of Motor Vehicles for a new
certificate of title.
It should be noted that G.S. 20-73 still requires a new owner to
secure a new certificate of title and that G.S. 20-74 provides a
penalty for failure to do so. The 1963 amendment to G.S. 20-72(b)
only affected the requirements for transfer of title and did not drop
the requirement entirely.
Rufus L. Edmisten, Attorney General
William W. Melvin
Special Deputy Attorney General
-31-
8 August 1975
Subject:
Requested by:
Question:
Conclusion:
Motor Vehicles; Equipment; Windshields
and Windows; Use of One-way Visibility
Glass
Colonel E. W. Jones
Commander
State Highway Patrol
May a substance be applied to the
windshields and windows of motor vehicles
so as to result in one-way vision; i.e., may
be seen through from the inside out but
not from the outside- in?
No. Such a substance would be in violation
of both G.S. 20-1 27(a) and
G.S. 20-1 27(c). Subsection (a) prohibits all
non-transparent material upon the
windshield and the rear and side windows
of any motor vehicle unless it is required
by law or approved by the Commissioner
of Motor Vehicles. In order for the material
to be classified as transparent, it would
have to be seen through from both sides
of the glass. Subsection (c) also prohibits
the use of such a substance. It requires the
motor vehicle glass to be free from
discoloration which would impair the
driver's vision or create a hazard. The said
substance, having the property of an
ordinary mirror when a light inside the
motor vehicle is turned on, can prevent the
driver from seeing outside of his vehicle.
Under either of these subsections of G.S. 20-127, the substance
which will allow only one-way visibility cannot be applied to the
windshield or other windows of a motor vehicle unless, under
subsection (a), it is approved by the Commissioner of Motor
Vehicles.
-32-
Rufus L. Edmisten, Attorney General
William W. Melvin
Special Deputy Attorney General
13 August 1975
Subject
Requested by:
Questions:
Conclusions:
Criminal Law; Applicability of
G.S. 14-269.2 to Private Security Guards
Employed by Institutions of Higher
Education and Secondary Schools
Mr. Jerry Adams, Administrator
Private Protective Services
State Bureau of Investigation
(1) Does G.S. 14-269.2 prohibit private
security guards employed by the governing
board of an institution of higher education
from carrying weapons on the grounds of
the institution while acting in the
performance of their duties?
(2) Does G.S. 14-269.2 prohibit private
security guards employed by the board of
education of a secondary school system
from carrying weapons on the school
grounds while acting in the performance of
their duties?
(1) Private security guards employed by
an institution of higher education are
specifically exempt from the prohibition in
G.S. 14-269.2 against carrying weapons on
school grounds.
(2) Private security guards employed by
secondary schools are exempt from the
prohibition in G.S. 14-269.2 against
carrying weapons on school grounds if
-33-
commissioned as special policemen
pursuant to Chapter 74A of the General
Statutes.
Many institutions of higher education and some secondary schools
employ private security guards to protect their buildings and
grounds. These guards often carry weapons. The question has arisen
as to whether such guards are prohibited by G.S. 14-269.2 from
carrying weapons while carrying out their duties.
G.S. 14-269.2 provides, in pertinent part:
"It shall be unlawful for any person to possess, or
carry, whether openly or concealed, any gun,...bowie
knife,. ..blackjack, ...or any other weapon of like
kind, ...in any public or private school building or bus,
on any public or private school campus, grounds,
recreation area, athletic field, or other property
owned, used or operated by any board of education,
school, college, or university board of trustees or
directors for the administration of any public or
private educational institution. ...This section shall not
apply to the following persons: ...officers of the State,
or of any county, city, or town, charged with the
execution of the laws of the State, when acting in
the discharge of their official duties, ...and any private
police employed by the administration or board of
trustees of any public or private institution of higher
education when acting in discharge of their duties."
The answer in regard to security guards employed by institutions
of higher education is clear. Private security guards employed by
an institution of higher education, while acting in the discharge of
their duties, are specifically exempted by the terms of the statute
from the prohibition against carrying a weapon onto the grounds.
A more difficult problem is presented in regard to security guards
employed by secondary schools. The exemption in the statute for
educational institutions is specifically limited to guards employed
by an institution of higher education. There is no exemption found
anywhere in the statute for guards employed by the board of
-34-
education of a secondary school system. Further, there is nothing
in the language of the statute which would make it susceptible to
an interpretation or construction permitting guards employed by the
secondary schools to carry weapons. Moore v. Jones, 76 N.C. 187;
State v. Whitehurst, 212 N.C. 300, 193 S.E. 657; 7 Strong's N.C
Index 2d, Statutes, Section 5. Thus, at first glance, it would appear
that private security guards employed by the board of education
of a secondary school system are prohibited from carrying any
weapon on school grounds.
We, however, find it difficult to believe that such an inconsistency
was intended by the General Assembly. In examining the General
Statutes, we believe that this inconsistency is remedied by construing
the exemption in G.S. 14-269.2 for "officers of the State or any
county, city or town charged with the execution of the laws of
the State" in conjunction with the provisions of Chapter 74A of
the General Statutes. G.S. 74A-1 specifically provides that an
"educational institution" may apply to the Governor for the
commissioning of persons to act as policemen for it. G.S. 74A-2
defines the powers and duties of such policemen. Subsection (b)
provides
"Such policemen, while in the performance of the
duties of their employment, shall severally possess all
the powers of municipal and county police officers..."
It is the opinion of this Office that security guards employed by
the board of education of a secondary school and commissioned
by the Governor pursuant to the provisions of Chapter 74A would
be "officers of the State, ...charged with the execution of the laws
of the State,..." within the meaning of G.S. 14-269.2 and, thus,
exempt from the prohibitions of the statute.
To summarize, private security guards employed by an institution
of higher education are exempt from the prohibitions of
G.S. 14-269.2. Private security guards employed by the board of
education of a secondary school system are exempt from the
prohibition contained in that statute provided such security guards
are commissioned by the Governor pursuant to Chapter 74A of the
General Statutes. We must note, however, that a security guard
employed by the board of education of a secondary school without
-35-
being commissioned pursuant to Chapter 74A and carrying a weapon
on school grounds would appear to be in violation of G.S. 14-269.2.
Rufus L. Edmisten, Attorney General
Edwin M. Speas, Jr.
Special Deputy Attorney General
15 August 1975
Subject: Social Services; Authority of Social
Services Commission to Promulgate
Standards for Selection of County Social
Services Board Members; Constitutionality
of Social Services Commission Standard
Number 5
Requested by:
Questions:
Ms. Flora R. Garrett
Chairman
Orange County Board of Commissioners
( 1 ) Under what statutory authority does
the Social Services Commission adopt and
enforce standards for selection of county
social services board members?
(2) Does Standard Number 5 of the
Social Services Commission, providing that,
"(B)oard members shall not have any near
relatives receiving financial assistance
through the county department of social
services on which board they serve..." run
afoul of either the North Carolina or
United States Constitution?
Conclusions: (1) The authority of the Social Services
Commission to adopt and enforce
standards for the selection of county social
services board members is derived from
G.S. 143B-153.
-36-
(2) Standard Number 5 of the Social
Services Commission does not run afoul of
either the North Carolina or the United
States Constitution.
The authority of the Social Services Commission to promulgate
standards for the selection of county social services board members
is derived from its power and duty under G.S. 143B-153 "...to adopt
rules and regulations to be followed in the conduct of the State's
social service programs..." Since the county boards are entrusted
with the responsibility of establishing county policies for the
programs of public assistance established by Chapter 108 of the
General Statutes (G.S. 108-7), it is the opinion of this Office that
the Social Services Commission has legitimately exercised its power
to determine who may set county policy in the administration of
the State's social services programs.
However, it is patent that the standards for the selection of county
social services board members may not violate provisions of either
the State or federal constitution. It is suggested that Standard
Number 5 of the Social Services Commission providing that "(B)oard
members shall not have any near relatives receiving financial
assistance through the county departments of social services on
which board they serve. ('Near relatives are defined as father,
mother, brother, sister, husband or wife, son, daughter, half brother
and half sister.')" denies a segment of the county population of
equal protection of the laws in violation of the Fourteenth
Amendment to the Constitution of the United States and Section
19 of Article I of the Constitution of North Carolina. By now it
is axiomatic that social and economic classificatory schemes must
be rationally related to a valid State interest in order to avoid
conflict with the Equal Protection Clause. Reed v. Reed, 404 U.
S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225 (1971) citing floater Guano
Co. v. Virginia, 253 U. S. 412, 40 S. Ct. 560, 64 L. Ed. 989 (1920).
The legitimate State objective in this case is not only the avoidance
of conflict of interest but also the avoidance of impropriety, and
also the appearance thereof, in the administration of the programs
of public assistance in North Carolina. In the judgment of this Office,
Standard Number 5 of the Social Services Commission furthers and
is rationally connected to this valid State goal. We submit that
the reasons advanced by the Supreme Court of the United States
-37-
in upholding the constitutionality of the Hatch Act, United States
Civil Service Commission v. National Association of Letter Carriers,
413 U. S. 548, 93 S. Ct. 2880, 37 L. Ed. 2d 796 (1973), are
analogous to the potential situation faced by employees of the
county department of social services in attempting to handle the
cases of recipients who are related to county board members:
"...the goal that employment and advancement in the
government service not depend on political
performance. ..that government employees be. ..free
from pressure and from express or tacit invitation to
vote in a certain way or to perform political chores
in order to curry favor with their superiors rather than
to act out their own beliefs."
Thus, while a board member with a near relative receiving public
assistance might disqualify himself from reviewing his relative's
public assistance file, he is powerless to eliminate the pervasive
influence his presence on the board will have on caseworkers,
eligibility specialists, and even fellow board members in dealing with
that relative's case. Accordingly, we would contend that Standard
Number 5 is constitutionally defensible under equal protection
analysis.
Finally, this Office is of the opinion that Sections 7 and 8 of Article
VI of the Constitution of North Carolina present no bar to the
continued enforcement of Standard Number 5.
Rufus L. Edmisten, Attorney General
William Woodward Webb
Assistant Attorney General
19 August 1975
Subject: Public Contracts; Counties; Competitive
Bidding; Additional Work
-38-
Requested by:
Question:
Conclusion:
Mr. James R. Hood
County Attorney
Jones County
May the Board of County Commissioners
negotiate for the extension of a water
distribution system estimated to cost
one-half million dollars, with the
contractor now performing work under a
contract awarded pursuant to
G.S. 143-129 for the installation of a
county water distribution system?
No. G.S. 143-129 requires public
contracts for construction and repair
estimated to cost more than ten thousand
dollars to be awarded to the lowest
responsible bidder after public advertising.
Such statute is regarded as rendering invalid
and unenforceable subsequent agreements
to pay one to whom a public contract has
been duly awarded additional
compensation for such extra work not
included in the original contract.
In a letter of August 4, 1975, the Jones County Attorney advises
that the Board of County Commissioners of Jones County has
entered into a contract for the construction of distribution lines,
treatment facilities, etc. for a county water system after advertising
for bids in accordance with the provisions of G.S. 143-129. The
county now finds that by reason of the bid being less than the
engineer's estimate, that they have funds available for an additional
extension of the county water system in the amount of $550,000.
The contractor awarded the initial contract has offered to construct
the planned extension estimated to cost about $550,000 at the
contract unit price of the existing contract. The Commissioners are
of the opinion that this price would be less than the cost if the
contract were let after public advertising pursuant to G.S. 143-129.
The Commissioners requested an opinion as to whether or not they
can negotiate an extension of the water system with the initial
contract or avoid public advertising for bids.
-39-
G.S. 143-129 requires contracts for the construction and repair
estimated to cost more than $10,000 to be awarded to the lowest
responsible bidder after public advertising as provided in that section.
A contract made in contravention of the statute is ultra vires and
void. Raynor v. Commissioners for Town of Louisburg, 220 N. C.
348.
Statutes requiring the letting of public contracts to the lowest bidder
are regarded as rendering invalid and unenforceable subsequent
agreements to pay one to whom a public contract has been duly
awarded additional compensation for extras or additional labor and
materials not included in the original contract, at least where the
additional compensation exceeds the amount for which the public
contracts may be made without competitive bidding. Annotation:
Public Contracts - Extras. 135 ALR 1266; Teer v. State Highway
Commission, 4 N. C. App. 126, 133. Therefore, this Office is of
the opinion that a contract for the extension of the county water
system beyond that called for in the original contract awarded can
only be entered into after competitive bidding in conformance with
the provisions of G.S. 143-129.
Rufus L. Edmisten, Attorney General
Eugene A. Smith
Special Deputy Attorney General
19 August 1975
Subject: Taxation; Franchise Taxes; Public Service
Companies; Distributions of Tax to
Municipalities; Sales Within a Municipality;
G.S. 105-116
Requested by:
Question:
Mr. John Hugh Williams
Attorney for City of Concord
Board of Light & Water Commissioners
Where a power company delivers electricity
to a city-owned substation located outside
of the municipal limits of the city, which
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the city in turn distributes through its
distribution system to customers within the
city, is the sale of electricity to the city
a "sale within the municipality", so as to
entitle it to a distribution of part of the
franchise tax imposed and collected by the
State?
Conclusion: No.
G.S. 105-1 16 imposes a State franchise tax upon every electric utility
company, measured by a percentage of its gross receipts. The
Secretary of Revenue then ascertains "the total gross receipts derived
from the sale within any municipality of the commodities or services
described in this section, except water and sewerage services, and
out of the tax of six percent (6%) of the gross receipts levied by
this section, an amount equal to a tax of three percent (3%) of
the gross receipts from sales within any municipality shall be
distributed to such municipality..." (Emphasis supplied.)
The City of Concord owns and operates a system for the distribution
of electricity. It purchases the electricity from Duke Power Company
at wholesale for resale to customers within the City. Duke delivers
the electricity to a city-owned substation from which further
distribution is made by the City.
The substation is situated on a lot which, prior to 14 June 1973,
was outside of, but contiguous to, the City limits. The substation
itself was outside the City limits by about 150 feet. The electricity
left the Duke Power Company distribution system and entered the
City system at that point. On 14 June 1973, the City extended
its limits to encompass the lot, together with other properties.
The question is, of course, whether Duke Power Company's gross
receipts from the sale of electricity to the City of Concord before
14 June 1973 were "sales within the municipality" so that a portion
of the tax paid by Duke and collected by the State would have
been distributable by the State to the City of Concord. There is
no question but that a portion of the tax on gross receipts after
that date would be distributable, and has been so distributed. That
question can be answered, we believe, by answering the following
-41-
question: Where did the sale of electricity to the City take place
prior to 14 June 1973?
For the purposes of this inquiry, it is clear that electricity is property
which itself may be the subject of sale.
"So far as the law is concerned, electricity made by
artificial means or electric current is property capable
of ownership and of sale and it may be the subject
of larceny. With regard to the kind of property,
electric current has been characterized as personal
property or a commodity, and it has been said that
the owner thereof may use it as he will, subject only
to the lawful exercise of the police power." 26 Am.
Jur. 2d Electricity, Gas and Steam, §1
"A 'sale' consists in the passing of title from the seller
to the buyer for a price." G.S. 25-2-106 See also
G.S. 25-2-401.
It would appear that title to the electricity in question passes at
the substation, which is the point at which Duke delivers it to the
City and loses all its right to control its further distribution. At
that point, it enters the City's system and is owned and controlled
by it. Since the sale occurred at the substation, was the sale "within
the municipality"?
The word "within" refers to an "area" and thus means "inside the
limits of". Towns ofIndian Lake, et al v. State Board of Equalization
and Review, 45 Misc. 2d 463, 257 N. Y. S. 2d 301. In re White's
Estate, 130 Kan. 714, 288 P. 764. Majeski v. Stuyvesant Homes,
140 N. J. Eq. 460, 55 A. 2d 33
See also District of Columbia v. Chesapeake & Potomac Telephone
Company, 179 F. 2d 814, holding that the place where title passes
is determinative of whether a sale has taken place "within the
District of Columbia" so as to be subject to a gross receipts tax
under a statute imposing such a tax on the sale of public utility
commodities and services.
We conclude, therefore, that delivery of electricity to a substation
physically located outside of and beyond the municipal limits of
-42-
the City of Concord does not constitute a "sale within the
municipality " and that the City is not entitled to a distribution
of a portion of a the gross receipts tax imposed pursuant to
G.S. 105-116.
Rufus L. Edmistem Attorney General
Myron C. Banks
Special Deputy Attorney General
20 August 1975
Subject
State Departments, Institutions and
Agencies; North Carolina Board of
Architecture; Payment of Expense
Allowances to members of
Requested by: Mr. R. Mayne Albright
Attorney for the North Carolina
Board of Architecture
Question: May the Board approve and pay expense
vouchers of its Board members under the
provisions of its practice act, G.S. 83-10,
or is the Board restricted to the expense
allowance provision of G.S. 93B-5 as
amended by Chapter 765 of the General
Assembly of North Carolina, Session 1975?
Conclusion: The Board is restricted to the expense
allowance provisions of G.S. 93B-5 as
amended by Chapter 765 of the General
Assembly of North Carolina, Session 1975.
G.S. 83-10 provides that all expenses incurred by members of the
Board of Architecture necessary in the discharge of their duties be
paid by the Treasurer of the Board upon warrant drawn by the
Secretary and approved by the President from funds derived from
examination fees. While this specific provision of Chapter 83 of the
North Carolina General Statutes has not been changed, the General
-43-
Assembly has set out in Chapter 93B-5(b) as amended by Chapter
765 of the General Assembly of North Carolina, Session 1975,
pertaining to Occupational Licensing Boards, that all Board members
shall be reimbursed for all necessary travel expense, including room,
meals and reasonable gratuities, in an amount not to exceed that
authorized under G.S. 138-6(a)(3) which now provides
TWENTY-THREE DOLLARS ($2.3) per day while traveling in State
and THIRTY-FIVE DOLLARS ($35) per day while traveling out
of State. Chapter 765 which amended G.S. 93B-5 further provided
that:
"Sec. 3. All laws and clauses of laws in conflict
with this Act are hereby repealed."
It is apparent from reading Section 3 as set out above that the
intent of the General Assembly was to repeal the provisions of
G.S. 83-10 which provides that all expenses incurred by members
of the Board be reimbursed, and replaces it by Chapter 765. Board
members shall be reimbursed as provided therein.
Rufus L. Edmisten, Attorney General
James E. Magner, Jr.
Assistant Attorney General
20 August 1975
Subject: Municipalities; Redevelopment
Commission; Municipality Exercising
Powers of Redevelopment Commission;
G.S. 160A-505; Eminent Domain; Sale of
Property in Redevelopment Project
Requested by: Mr. Tommy W. Jarrett
Attorney-at-Law
Goldsboro
Questions: (1) Where a city has abolished a
redevelopment commission and exercises
the powers, duties and responsibilities of
-44-
the commission itself, pursuant to
G.S. 160A-505, may the municipality
exercise the power of eminent domain as
conferred upon a redevelopment
commission in G.S. 160A-515?
(2) Where the municipality has assumed
the powers and duties of a redevelopment
commission, do the provisions of
G.S. 160A-514, concerning the disposition
of property, apply or do the provisions of
G.S. 160A-266 through 160A-275 apply?
Conclusions: (1) The municipality is restricted to
exercising the power of eminent domain as
conferred by G.S. 160A-515 in carrying
out the powers and duties of a
redevelopment commission.
(2) G.S. 160-514 is controlling.
Pursuant to G.S. 160A-505, a city may abolish a redevelopment
:ommission and undertake to exercise such powers, duties and
•esponsibilities of the commission itself and it may assign the
idministration of redevelopment policies, programs and plans to any
existing or new department of the municipality. When a municipality
ibolishes a redevelopment commission, it may, at any time
aibsequent to such abolishment or concurrently therewith, exercise
he authority granted by G.S. 160A-505(a). A careful reading of
tG.S. 160A-505(a) indicates that the abolishment of the
edevelopment commission and the assumption of powers, duties
ind responsibilities of the commission by the city confers upon the
nunicipality, or any department of the municipality which it has
issigned such powers, duties and responsibilities, the same authority
(contained in Article 22 of Chapter 160A, as previously was vested
In the redevelopment commission.
Ve conclude, therefore, that in carrying out a redevelopment project,
he city in acquiring property through eminent domain must use
he procedures specified in G.S. 160A-515.
-45-
Although G.S. 160A-241 confers the power of eminent domain
upon municipalities in addition to powers conferred by any other
general law, charter or local act, the purposes for which the power
of eminent domain may be exercised pursuant to G.S. 160A-241,
are limited to the purposes listed therein, which do not include
redevelopment projects.
Therefore, we conclude that the city, in carrying out a
redevelopment project, should follow the procedures prescribed in
G.S. 160A-515.
Likewise, we conclude that in the disposition of property of a
redevelopment project, G.S. 160A-514 should be followed by the
municipality, rather than the provisions for the disposition of
property contained in G.S. 160A-266 through G.S. 160A-275.
Thus, we conclude that where a city itself is exercising the powers,
duties and responsibilities of a redevelopment commission, it is:
restricted in carrying out a redevelopment program to those powers:
and procedures prescribed in Article 22 of Chapter 160 relating to
redevelopment commissions.
Rufus L. Edmisten, Attorney General
James F. Bullock
Senior Deputy Attorney General
20 August 1975
Subject:
Requested by:
Questions:
Licenses and Licensing; House Mover?
Licensing Board; Prorate License year and
License Fee; Indemnification Bone
Required by Chapter 366, 1975 Sessior
Laws (G.S. 136-44.32)
Ms. Lana Brau
Secretary
House Movers Licensing Board
(1) What is the meaning and intent ol
the term "indemnification bond" as usee
-46-
in G.S. 136-44.32 which sets up the
requirements to become a registered
professional house mover?
(2) May the House Movers Licensing
Board prorate the license year and license
fee in such a manner so that all licenses
become due on a date certain?
Conclusions: (1) The meaning and intent of the term
"indemnification bond" as used in
G.S. \36A4.32. is to protect and secure
citizens of the State of North Carolina
against loss or damage that they might
suffer, through no fault of their own, by
the employment of a registered house
mover to relocate an improvement from
one point to another.
(2) No.
G.S. 136-44.32 provides, in part:
"No person shall engage in the business of moving
houses on a State highway or road unless such person
has obtained a license under the rules and regulations
of the board and under the provisions of this Article.
No person shall be licensed until he furnishes the board
with proof that he has and will maintain personal
injury liability insurance with limits of at least one
hundred thousand dollars/three hundred thousand
dollars ($100,000/$300,000); property damage
insurance of at least fifty thousand dollars ($50,000);
and indemnification bond in a minimum amount of
fifty thousand dollars ($50,000)...."
In the interpretation and construction of statutes, the legislative
intent must be determined. "Words in a statute are to be given their
natural, ordinary meaning, unless the context requires a different
construction." Housing Authority v. Farabee, 284 NC 2.42. In Sellers
v. Refrigerators, Inc., 283 NC 79, the Court said:
-47-
"Where the words of a statute have not acquired
a technical meaning, they must be construed in
accordance with their common and ordinary
meaning..." (p. 85)
In 41 Am. Jur. 2d, Indemnity, §1, page 687, the term "indemnity'
is defined as follows:
"The word 'indemnity' is defined by lexicographers
to mean 'security or protection against hurt or loss
or damage'. The word appears to be used in two
general senses: (1) in the sense of giving security,
which in many cases is done by the execution and
delivery of a bond; and (2) in the sense of
compensating for actual damage."
It may be stated, therefore, that the purpose of the indemnificatioi
bond required by the provisions of Chapter 366, 1975 Session Laws
particularly G.S. 136-44.32, is to save harmless the customers o
the licensed house mover against loss or damage they might suffe
by reason of the employment of a licensed house mover in relocatinj
an improvement. The loss for which the indemnity is provided unde
the statute is for the loss or damage to property being relocatec
by the licensed house mover, his agents, or employees. Sucl
indemnification bond shall be secured for the benefit and use o
aggrieved persons and executed by an authorized corporate suretj
or insurer approved by the Commissioner of Insurance in the tota
aggregate amount of FIFTY THOUSAND DOLLARS ($50,000). Thi
bond shall be continuous in form and shall be maintained an(
replaced annually at the time of renewal of the license. The bom
shall be conditioned on the prompt payment of the losse:
hereinabove specified. Such bond shall remain in full force unti
the surety is released from liability by the House Movers Licensing
Board. Without prejudice to any liability accruing prior to sucK
cancellation however, the surety may cancel said bond upon 30 day:
advance notice in writing filed with the Board.
With respect to the authority of the Board to prorate the license
year and license fee in such a manner as to have all licenses expin
on a date certain, the statute is very specific. G.S. 136-44.3^
provides in part:
-48-
"A license issued hereunder shall be effective for a
period of one year from date of issuance. An annual
license fee in the amount of one hundred dollars
($100.00) shall be paid to the board...."
[Tie statute specifically provides that the license issued by the Board
hall be effective for a period of one year from date of issuance,
j.S. 136^44.32, and makes no provisions for having either the
icense year or license fee prorated in such a manner as to have
11 licenses become due on a date certain.
Rufus L. Edmisten, Attorney General
James E. Magner, Jr.
Assistant Attorney General
:0 August 1975
iubject:
Requested by:
Question:
'on elusion:
Mental Health; Voluntary Admissions of
Minors and Incompetent Persons
Mr. John L. Pinnix
Special Counsel
Broughton Hospital
Do the post-admission procedures specified
by G.S. 122-56.7 violate the right to
privacy of a voluntarily admitted minor or
incompetent person?
No.
le policy of the State is to encourage voluntary admission to a
reatment facility of any person believing himself to be in need of
reatment for mental illness or inebriety. See G.S. 122-56.1 and
J.S. 122-56.3.
i.S. 122-56.5 provides that a parent, person standing in Loco
arentis or guardian shall act for a minor and a guardian or trustee
lall act for a person adjudicated non compos mentis in applying
)r admission to a treatment facility.
-49-
In In re Long, 25 N.C. App. 702, S.E. 2d (19751
the Court stated:
"...we find the admission procedure used in the present
case to be permissible. The judicial deference afforded
to parental authority along with the parent's interest
in being able to seek immediate treatment and the
policy of encouraging voluntary admissions outweigh
any interest the minor may have in pre-admission
hearing.... However, the continued confinement of a
minor based on that procedure requires procedural
safeguards consistent with the Due Process Clause.
Such procedural due process should be afforded at the
earliest possible time after admission. We will not
undertake to formulate a post-admission procedure
designed to protect against the unnecessary
confinement of a minor under Article 4 of Chapter
122. That is best left to the wisdom of the
Legislature."
Chapter 839 of the 1975 Session Laws added a new section td
Article 4 of Chapter 122 which is designated as G.S. 122-56.7 anc
entitled "Judicial determination." This section provides for a hearing
'
specified by the Court of Appeals in In re Long, supra, and read;m
in pertinent part as follows:
"(a) A hearing shall be held in district court in the
county in which the treatment facility is located
within 10 days of the day a minor or a person
adjudicated non compos mentis is admitted to a
treatment facility pursuant to G.S. 122-56.5
(b) The court shall determine whether
(1 ) such person is mentally ill or inebriate and
(2) is in need of further treatment at the
treatment facility."
This section further provides that the initial hearing and al
subsequent proceedings shall be governed by the involuntary
commitment procedures of Chapter 122, Article 5A, of the Genera
Statutes.
-50-
'he Court of Appeals in the Long case required a judicial
etermination satisfying procedural due process requirements for a
linor or non compos mentis admitted by parent, guardian or trustee
ut left the formulation of such procedure for legislative action.
'his Office is of the opinion the post-admission hearing specified
y G.S. 122-56.7 does not violate any provision of the Federal
'onstitution, the Constitution of North Carolina, or the right of
rivacy of the patient.
Rufus L. Edmisten, Attorney General
Parks H. Icenhour
Assistant Attorney General
1 August 1975
ubject: Mental Health; Facility Services; Licenses
and Licensing; Requirement for Licensing
of Local Mental Health Facilities Under
G.S. 122-35.28
^quested by:
uestions:
Mr. I. O. Wilkerson, Jr.
Director
Division of Facility Services
N. C. Department of Human Resources
Does Article 2E of Chapter 1 22 require the
licensing of:
(a) Mental health clinics operated under
Article 2A, Chapter 122?
(b) Mental health clinics operated under
Article 2C, Chapter 1 22 both single county
operations and multiple county operations?
(c) Mental health clinics furnishing only
inpatient treatment, only outpatient
treatment, or both inpatient and outpatient
treatment?
-51-
(d) Alcoholic rehabilitation agencie
formed under Article 2B, Chapter 122?
(e) State operated institutions such a
the four mental hospitals, the four center
for the mentally retarded, the thre
alcoholic rehabilitation centers, and th
Wright School for emotionally disturbs
children?
Conclusions: Article 2.E of Chapter 122 does require th
licensing of all of the types of facilitie I
described in (a), (b), (c), and (d). It doe
not require the licensing of the facilitie
described in (e).
Article 2E of Chapter 122 is entitled "Licensing of local menta
health facilities". It is a new statute enacted at the 1975 Sessio
of the General Assembly with an effective date of July 1, 197!
The following statement found in G.S. 122-35.28, a section include
within Article 2E, appears to set forth the basic intent of t
legislators:
"Any local mental health facility, of whatsoever
nature, which is operated under the provisions of
Chapter 122 of the General Statutes is required to
obtain a license permitting such operation...."
Clearly, the facilities operated in accordance with Articles 2A, 2
and 2C are local entities by their very statutory description!
Further, the sweeping language of G.S. 122-35.28 contemplates th
inclusion of each and every one of these facilities regardless of th
scope of or limitations on the services rendered by it.
As to the other facilities described in the question, the language
in the following statutes clearly stamps them as State rather thaj,
local facilities:
The four mental hospitals-G.S. 122-7;
The four centers for the mentally
retarded-G.S. 122-69;
-52-
The three alcoholic centers-G.S. 122-7.1;
The Wright School for emotionally disturbed
children-G.S. 122-98.1.
Rufus L. Edmisten, Attorney General
William F. O'Connell
Special Deputy Attorney General
. August 1975
abject:
isquested by:
(aestion:
(>n elusion:
State Departments, Institutions and
Agencies; Ports Authority; Power of the
Authority to Sell or Lease its Southport
Facility
Mr. E. E. Lee, Jr.
Executive Director
State Ports Authority
Does the State Ports Authority have the
power to sell or lease its small boat harbor
facility at Southport to a private individual
or enterprise?
The Ports Authority may lease its facility
at Southport to a private individual or
enterprise so long as such lease is consistent
with the purposes for which the Ports
Authority was established. It may not sell
its Southport facilities without specific
legislative authority.
addition to its port facilities at Wilmington and Morehead City,
t; North Carolina State Ports Authority owns and operates a small
bat harbor at Southport. This facility is situated on approximately
3acres of land immediately adjacent to the inter-coastal waterway.
le harbor and a small office building were constructed with funds
neived from a statewide bond referendum in 1959, Chapter 1038
o the 1959 Session Laws. A dry rack storage building was recently
obstructed with Ports Authority funds. The Ports Authority is
-53-
exploring the possibility of selling or leasing this facility and, a"j|
its last meeting, requested an opinion from this Office concerninj
its power to proceed with such sale or lease.
G.S. 143-218(3) provides that the Ports Authority shall:
"Be authorized and empowered to rent, lease, buy,
own, acquire, mortgage, otherwise encumber, and
dispose of such property, real or personal, as said
Authority may deem proper to carry out the purposes
and provisions of this Article, all or any of them;..."
This statute has been interpreted as giving to the Ports Authorit;
power to lease its property to private investors. North Carolina Stat
'
Ports Authority v. First Citizens Bank and Trust Co., 242 N.C. 41^1
88 S.E. 2d 1955; 41 N.C.A.G. 78. As noted in the referenced casf 1
and opinion, however, such a lease must be consistent with thl i'i
purposes for which the Ports Authority was created. See alslita
Brumley v. Baxter, 225 N.C. 691, 36 S.E. 2d 281. In this situation I;;
we believe this to mean that the Ports Authority may lease thij
small boat harbor to a private individual or investor for the operatic-'
of a public marina, but no other purpose.
The question of the power of the Ports Authority to sell any c
its facilities has not heretofore been addressed by the courts or th;
Office. G.S. 143-218(3) does give to the Ports Authority gener;
power to sell its real property. It is the opinion of this Offio
however, that this general authority does not extend so far as 1!
permit the Ports Authority to sell its entire facilities at Southpor;;
J
G.S. 143-217(1) specifically charges the Ports Authority with tl
improvement and development of the harbor facilities at Southpor
The Ports Authority has undertaken this responsibility and publ
funds have been used to carry out such responsibility. We belie1
the harbor facilities at Southport have been dedicated to a publ'j
use. To sell this facility would constitute an abandonment of oi|
of the purposes for which the Ports Authority was created and i
abandonment of its dedication to public use. It is the opinion I
this Office, that authority to sell the Southport facility may ntages of completion, is physically located in space in the Courthouse
issigned to the Tax Supervisor.
K newspaper reporter has now asked to see "the 1976 real estate
ippraisal cards", contending that they are public records, apparently
?or the purpose of preparing a newspaper account of the revaluation
efforts of the county.
There is no question that public records, except as otherwise
provided by law, ought to be accessible to the public. Public business
s generally best performed when subject to public scrutiny, and
he law so provides: "Every person having custody of public records
hall permit them to be inspected..." G.S. 132-6. Nor can there be
iny question, we believe, that county tax records, including the
:ounty's property record cards, are such records and that the Tax
Supervisor is ordinarily the person having custody of them and
equired to permit inspection of them.
lowever, it is our opinion that "inchoate" tax records in the process
)f preparation by one who has contracted with the county to
>rovide such service do not constitute public records. "Public
ecords" include "documentary material, regardless of physical form
>r characteristics, made or received pursuant to law or ordinance
-57-
in connection with the transaction of public business by any agency
of North Carolina government or its subdivisions." (Emphasis
supplied. )G.S. 132-1. Here, according to the terms of the contract,
the material sought has not been "made" by the Tax Supervisor
or yet "received" by him.
Neither are these inchoate records public records in the hands of
Centralina, which itself may be a unit of government, since they
are not made by it "pursuant to law or ordinance" but rather
pursuant to a contract to perform what is referred to in the contract
and in the Centralina charter as a "special project". The contract
itself is defined by statute as one "for personal services"
(G.S. 105-299) and ordinarily the work product of one performing
such a contract is his alone unless and until it is transmuted into
such form as the contract itself may require to be delivered. We
do not believe, for example, that a lawyer, employed to examine
the title to county property, is required to open his title file on
the property to the public simply because he has a contract to
provide a personal service to the County, although his opinion of
title, and indeed his file, would be open if furnished to the County
and accepted by it pursuant to the contract.
Other jurisdictions have reached similar conclusions in connection
with incomplete appraisals made by employed appraisers:
Under v. Eckard, 261 Iowa 216, 152 N.W. 2d 833;
Curran v. Board of Park Commissioners , 2.2 Ohio Misc.
197, 51 Ohio Ops. 2d 321, 259 N.C. 2d 757.
We, therefore, conclude that the Tax Supervisor may not be requirec
to open property record cards to public inspection until they are
completed and delivered to the County in fulfillment of the contract
and accepted by it. The entire appraisal process as well as its
application to individual parcels of land is open to inspection
scrutiny and challenge under G.S. 105-317 and 105-322, after the
records have become public. However, in all candor, we can set
no harm in permitting the inspection of the incomplete records b)
a representative of the press unless to do so would delay or hindei
the completion of the revaluation task.
Rufus L. Edmisten, Attorney General
Myron C. Banks
Special Deputy Attorney General
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CA
21 August 1975
Subject:
Requested by:
Question:
"on elusion:
Mental Health; Area Mental Health
Programs, Single and Multi-County;
Authority to Manage and Control Mental
Health Program Funds
Mr. R. J. Bickel
Assistant Director for Administration
Division of Mental Health Services
N. C. Department of Human Resources
In both single and multi-county mental
health programs, who has authority to
manage and control mental health program
funds?
In both single and multi-county mental
health programs, the area mental health
board has the authority to manage and
control mental health program funds.
rea mental health programs are authorized by Article 2C of Chapter
22 of the General Statutes. G.S. 122-35.20 provides for the
ippointment of area mental health boards in both single and multiple
:ounties and, subject to the rules and regulations of the State
Commission for Mental Health Services, such board is responsible
'or evaluating the area needs and programs in the area of mental
lealth and related fields. G.S. 122-35.19 defines "local funds" and
'State grant-in-aid" with G.S. 1 22-35.23A providing a formula by
vhich appropriations are made by the Department of Human
Resources to the area mental health programs.
The nature of area mental health programs has been the subject
, )f previous opinions by this Office. Those opinions conclude that
irea mental health centers under Article 2C of Chapter 1 22 of the
jeneral Statutes are under the authority and control of area mental
lealth boards and not the county boards of commissioners, (Opinion
)f the Attorney General to Mr. Ervin M. Funderburk, Jr., 41
^J.C.A.G. 778 (1972)), each area mental health program is
dministered by an area mental health board which constitutes an
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entity created by the legislature with governmental functions,
(Attorney General Opinion to Mr. R. Patterson Webb, 42 N.C.A.G.
120 (1972)), the area mental health board has authority to set the
wages of employees of the area mental health program (Attorney
General's Opinion to Mr. R. J. Bickel, 44 N.C.A.G. 67 (1975)), and
that both single and multi-county programs are "public authorities"
within the meaning of G.S. 159-7(b) (10). (Attorney General's
Opinion to Mr. Harlan E. Boyles, 44 N.C.A.G. 185 (1975)).
Additionally, Chapter 400 of the 1975 Session Laws amended
G.S. 122-35. 20(e) to read in pertinent part as follows:
"Area mental health boards are local political
subdivisions created jointly by county or counties and
the North Carolina Commission for Mental Health
Services,..."
Based upon the foregoing, this Office is of the opinion that the
area mental health board, a local political subdivision, has authority
to manage and control mental health program funds. This should
not be construed as inhibiting such boards from seeking the advice
and assistance of the counties or other local subdivisions of
government.
Rufus L. Edmisten, Attorney General
Parks H. Icenhour
Assistant Attorney General
28 August 1975
Subject:
Requested by:
Questions:
Criminal Procedure; Chapter 15A
Non-testimonial Identification; Discover}
of Defendant's Remarks to Witnesses
Mr. Anthony Brannon
District Attorney
Fourteenth Judicial District
(1) Does the requirement that the Stafc
provide the defense with copies o
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statements made by the defendant which
the State intends to offer at trial
(G.S. 15A-903(a)) extend to remarks made
by the defendant to witnesses who have
subsequently been interviewed by persons
acting on behalf of the State?
(2) After an arrest of a defendant based
upon probable cause, may law enforcement
officers utilize normal investigative
procedures such as photographing,
fingerprinting, lineups, etc. or must the
arresting officer proceed exclusively under
the procedures for non-testimonial
identification procedures set out in
G.S. 15A-2.71 through G.S. 15A-282?
Conclusions: (1) No, the requirement in
G.S. 15A-903(a) that the State furnish to
the defense copies of statements of the
defendant which the State intends to offer
at trial does not extend to remarks or
conversation by the defendant to or in the
presence of witnesses who are subsequently
interviewed by persons acting on behalf of
the State.
(2) No, after arrest of a defendant based
upon probable cause, a law enforcement
officer may utilize normal investigative
procedures including fingerprinting,
photographing, lineups, etc. and need not
follow exclusively the Article 14
non-testimonial identification procedures.
The thrust of the requirement of G.S. 15A-903(a) is to require that
counsel for a defendant knows of the existence and can thereafter
inquire into the circumstances surrounding the taking of
"statements" by the defendant to law enforcement officers. The
statements sought to be disclosed are "admissions" and
"confessions" by the defendant which might ordinarily be subject
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to inquiry via a motion to suppress under Article 53.
The purpose of requiring such disclosure, in addition to the general
policies favoring more complete discovery, is to facilitate the pretrial
disposition of motions to suppress admissions and/or confessions
made by the defendant in factual circumstances raising
Miranda-related factual questions of improper inducement or
coercion, deprivation of liberty, and voluntariness of confessions.
The remarks made to a bystander by a defendant in the process
of committing a crime are not subject to the same policy
considerations and the disclosure of that information would more
logically fall under the provisions of G.S. 15A-904. There the Act
exempts from mandatory discovery the statements of witnesses or
prospective witnesses of the State to "anyone acting on behalf of
the State".
This conclusion is further reinforced and supported by the exclusion
from the Act by the General Assembly of the requirement (originally
in the 1973 SB 207/HB 256) to disclose the names and addresses
of witnesses. It would be illogical to assume that the Act intended
to require discovery of remarks of the defendant to bystander
witnesses but not disclosure of the witnesses' names. Yet the record
is clear that the General Assembly in the Senate deleted from SB
207/HB 256 proposed Section 15A-903(f) and 15A-904(c) which
would have required reciprocal disclosure of witnesses' names and
addresses.
The question here was raised in the House and Senate committees
with regard to proposed Section 15A-272 as it appeared in HB 256
and SB 207 in 1973. While the intent of the Criminal Code
Commission was clearly not to require that the Article 14 procedure
be required in normal law enforcement investigative procedures, the
General Assembly wanted more explicit assurances and amended the
bill to add what is now the second sentence of G.S. 15A-272. It
reads:
"Nothing in this Article shall preclude such additional
investigative procedures as are otherwise permitted by
law."
-62
The intent of the section (G.S. 15A-272) is clear on its face; but
read in the context of its amendment by adding the second sentence,
the legislative intent is undoubtedly to authorize non-testimonial
identification procedures as an additional law enforcement
investigative tool which could be utilized upon a showing of
"reasonable grounds to suspect" the person named, a less stringent
test than "probable cause to believe" that the person named had
in fact committed the offense.
Rufus L. Edmisten, Attorney General
Sidney S. Eagles, Jr.
Special Deputy Attorney General
8 September 1975
Subject
State Departments, Institutions and
Agencies; Public Officers, Deferred
Compensation Plan Board of Trustees;
Sovereign Immunity; G.S. 147-9.2 et seq.
Requested by: Mr. Glen B. Hardymon
Board of Trustees
North Carolina Public Employees Deferred
Compensation Plan
Questions: (1) Are Trustees of the North Carolina
Public Employees' Deferred Compensation
Plan public officers?
(2) Does the doctrine
immunity apply to them?
of sovereign
Conclusions: (1) Yes.
(2) Yes, to the same extent as to other
public officers.
In 1971, the General Assembly adopted broad enabling legislation
pursuant to which a State employee might defer income for income
-63-
tax purposes, a benefit which had not previously been available.
C. 433, S.L. 1971; now codified as G.S. 147-9.2 et seq. Although
the legislation has been in effect since ratification, on 24 May 1971,
no income has been deferred under it, due undoubtedly to the many
complexities involved in establishing any new tax-oriented benefit
plan and to the very recent development of the deferred
compensation field where public employees are concerned.
Observing the relative lack of activity in implementing the legislation,
the Governor, in 1974, appointed a "Board of Trustees of the North
Carolina Public Employees Deferred Compensation Plan", which, by
Executive Order, was directed to establish a plan, secure its approval
for federal income tax purposes and choose an administrator to assist
in the establishment, maintenance and administration of the
program. The Order further offers to each State agency the use of
the Board in entering into deferred income contracts with
employees.
Following many months of planning, meetings, and public hearings
at which potential administrators and other interested persons and
groups were heard, the Board has now adopted a plan, secured its
approval by IRS, selected an administrator and is now prepared to
offer a deferred compensation plan to State employees.
With that background in mind, and bearing in mind the creation
of the Board by Executive Order and the potentially substantial
funds which will be deferred and invested through the medium of
the Board and its administrator, you have inquired whether, or to
what extent, the Board will be entitled to the protection of the
doctrine of sovereign immunity. The answer to that question appears
to depend upon whether or not the Trustees are "public officers".
G.S. 147-9.4 provides that
"
...the chief executive officer of an
employee, on behalf of the employer, may enter into an annual
contract with an employee under which the employee irrevocably
elects to defer receipt of a portion of his following year's scheduled
salary,. ..The agreement to defer income referred to herein shall be
effective under the necessary regulations and procedures adopted
by the chief executive officer and on forms prepared by him."
(Emphasis supplied.)
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By definition, an "employee" is a permanent, not temporary, State
employee, the "employer" is the State of North Carolina and a
"chief executive officer" is the administrative head of a State
department or agency or "an agent of such chief executive officer
duly authorized to enter into" deferred compensation contracts.
G.S. 147-9.2.
The Governor is himself such a "chief executive officer", since he
is the administrative head of "the Office of the Governor", having
its own "immediate staff" of employees. G.S. 143A-12;
G.S. 143A-10; G.S. 143B-5. He is clearly authorized, under
G.S. 147-9.4, to adopt "necessary regulations and procedures", and
may appoint an agent to represent him. G.S. 147-9.2(1). In this
case, his agent is the Board of Trustees, which for deferred
compensation purposes is by definition a "chief executive officer"
(G.S. 147-9.2(1)), which acts "on behalf of the employer" (by
definition, the State). G.S. 147-9.4. We , therefore, conclude that
Trustees, who are appointed under the agency head's statutory
power to adopt "necessary regulations and procedures", and whose
function it is to act "on behalf of" the State under a statute which
specifically recognizes the authority of an agency head to act
through an "agent", must be and are public officers within the
relatively narrow parameters of a deferred compensation plan.
Of course, the Governor has not merely created the Board (and
the Board has not merely created the Plan) for the relatively few
employees of the Governor's office. The Executive Order recognizes
that by providing that other "chief executive officers" may also
appoint the Board as their agents with respect to their departmental
employees. There is no requirement in the law that they do so,
but if they do, then Board becomes agent for each such department
head, and again, as such agent, a Trustee would be a public officer.
With that in mind, the Trustees would be subject to the same
immunity, and to the same liabilities, as other public officers
generally. While any assertion of liability will depend upon the
operative facts and circumstances, the following general statements
which concern public officers, and which appear in 63 AM. Jur.
2d, Public Officers and Employees, § 288, are broadly applicable:
"§ 288. Acts in line of duty or under color of
authority. As a rule, a public officer, whether judicial,
-65-
quasi-judicial, or executive is not personally liable to
one injured in consequence of an act performed within
the scope of his official authority, and in the line of
his official duty. In order that acts may be done within
the scope of official authority, it is not necessary that
they be prescribed by statute, or even that they be
specifically directed or requested by a superior officer,
but it is sufficient if they are done by an officer in
relation to matters committed by law to his control
or supervision or that they have more or less
connection with such matters, or that they are
governed by a lawful requirement of the department
under whose authority the officer is acting.
The protection extends only to acts done in the line
of official duty. Therefore, if an officer, even while
acting under color of his office, exceeds the power
conferred on him by law, he cannot shelter himself
under the plea that he is a public agent. Neither an
officer nor an agent can properly be said to have acted
under color of a law which gave neither him nor any
other person authority to do the act in question; nor
can an officer be said to have acted under the
authority of his office unless he has some appearance
of right to it and is in possession and acting in that
capacity, for the acts of a mere intruder or usurper
of an office, without any colorable title, are
undoubtedly void both as to individuals and as to the
public."
Rufus L. Edmisten, Attorney General
Myron C. Banks,
Special Deputy Attorney General
11 September 1975
Subject: Armory Facilities; Use of City Funds for
Construction of Armory Facilities which
may be Located Outside the City Limits
-66-
Requested by: Mr. Lowry M. Betts
City Attorney
San ford
Question: May a city appropriate and contribute city
funds to be used in the construction of
armory facilities for the North Carolina
National Guard, which facilities will be
located within the county but outside the
city limits?
Conclusion: Yes.
G.S. 127-112 provides that any city or town in any county in the
State may jointly or separately make appropriations to supplement
available Federal or State funds to be used for the construction
of armory facilities for the National Guard and that appropriations
made under this authority shall be in amounts and in proportions
as may be deemed adequate and necessary by the governing body
of the county and/or municipality desiring to participate in the
armory construction program.
G.S. 143-236 provides that every municipality and county is
authorized and empowered to appropriate from year-to-year public
funds for the benefit of any unit or units of the National Guard
as the governing body of the municipality or county deems wise
and expedient.
G.S. 143-235 provides that every municipality and county is
authorized and empowered to acquire real property which may be
suitable for use as an armory or for the construction of an armory
thereon or for any other purpose of a unit or units of the National
Guard. It further provides that contracting of an indebtedness and
the expediture of public funds for this purpose by any municipality
or county will be a "necessary expense and for a public purpose."
The above cited authorities do not limit the expenditure of
municipal funds to the construction of an armory facility or the
maintenance of an armory facility to such facilities located within
the city limits. They provide that the expenditure of moneys for
such purposes may be made by a city or county "separately or
-67-
jointly" and that such expenditures will be considered a necessary
expense and for a public purpose. The statutes are broad and
expansive and do not restrict a city from appropriating and
contributing city funds to be used for the construction of armory
facilities for the North Carolina National Guard, even though those
facilities may be located outside the municipal boundaries of the
city.
Rufus L. Edmisten, Attorney General
John R. B. Matthis
Special Deputy Attorney General
11 September 1975
Subject:
Requested by:
Question:
Conclusion:
Human Resources; Youth Services; Infants
and Incompetents; Placement of Youths
Over Sixteen Years of Age in Youth
Services Facilities
Mr. Edward F. Taylor
Assistant Administrator
Juvenile Services Division
Administrative Office of the Courts
May a juvenile who has been placed on
probation after reaching age sixteen be
committed to the Department of Human
Resources for placement in a facility
administered by the Director of Youth
Services because of a later violation of
probation or other reason arising prior to
his attaining the age of eighteen years?
No.
The current Chapter 134, effective July 1, 1975, establishes the rules
for the administration of training schools by the Department of
Human Resources, with the Director of Youth Services being the
responsible official for that administration. As used in that Chapter,
-68-
the word "child" is defined as any person who has not reached
his sixteenth birthday and "delinquent child" is defined as any child
subject to juvenile jurisdiction in the district court "as defined by
G.S. 7A-278(2) who is subject to commitment to an institution for
delinquents under G.S. 7A-286." See G.S. 134-2(1) and (2).
Further, G.S. 134-18 requires the Department of Human Resources
to accept "...all children who have been committed for delinquency
under G.S. 7A-286, provided the director or his staff finds that the
statutory criteria specified in G.S. 7A-286(5) have been complied
with."
Turning to G.S. 7A-278, the following provisions contain significant
definitions:
"(1) 'Child' is any person who has not reached his
eighteenth birthday and is not married, emancipated,
or a member of the armed services of the United
States: Provided that, for the purposes of subdivision
(2) of this section, 'child' is any person who has not
reached his sixteenth birthday."
"(2) 'Delinquent child' includes any child who has
committed any criminal offense under State law or
under an ordinance of local government, including
violations of the motor vehicle laws or a child who
has violated conditions of his probation under this
article."
Finally, G.S. 7A-286 provides for the commitment to a regional
program of "a child who is delinquent."
Correlating all of the above statutory provisions, the conclusion is
inevitable that the General Assembly intended that only children
who have been adjudicated delinquent will be committed for
placement in training schools, and that children, for that purpose,
shall include only those adjudged to be delinquent prior to the age
of sixteen.
It is noted, however, that the second paragraph of G.S. 7A-286
provides that when the court "...adjudicates the child to be
delinquent...the jurisdiction of the court to modify any order of
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disposition made in the case shall continue during the minority of
the child or until terminated by order of the court, except as
otherwise provided herein..." Thus, it would appear that when the
adjudication of delinquency occurs before the child reaches the age
of sixteen, modification of the court order to permit commitment
to a Department of Human Resources Training School is authorized
prior to the time the individual reaches the age of eighteen.
Rufus L. Edmisten, Attorney General
William F. O'Connell
Special Deputy Attorney General
24 September 1975
Subject
Requested by:
Question
Mental Health; Area Mental Health
Programs; Personnel Administration of
Program Employees
Mr. Edward B. Krause
Attorney for Area Board of Mental Health
Area MI
Buncombe, Madison, Yancey and Mitchell
Counties
As a result of the amendment of
G.S. 122-35.20 by the 1975 General
Assembly, are employees of Area Mental
Health Programs now "county
employees"?
Employees of Area Mental Health Programs
are not "county employees" but Chapter
126, North Carolina General Statutes, is
applicable to them for the purpose of
personnel administration.
Article 2C, Chapter 1 22 creates Area Mental Health Programs. These
Programs are under the control of Area Mental Health Boards, and
this Office has repeatedly held such Boards to be governmental
-70-
Conclusion:
entities separate from the State and the county governments.
The 1975 General Assembly amended G.S. 122-35.20 (a section
within Article 2C) by adding the following language:
"Area Mental Health Boards are local political
subdivisions created by county or counties and the
North Carolina Commission for Mental Health
Services, and employees thereof are local employees;
however, for the purpose of personnel administration
Chapter 126 shall be applicable."
Significantly, this Amendment, effective July 1, 1975, did not use
the terminology "county employees" nor is there any indication
of an intent to convert the program employees into employees of
the county. However, the patent language of the Amendment
requires adherence to Chapter 126 for "personnel administration".
As a result of the language utilized by the General Assembly, it
would appear that it was intended to make the language of Article
3 (entitled Local Discretion as to Local Government Employees)
of Chapter 126 directly applicable to these programs.
In view of this statutory change, any conflict between it and the
Opinion of the Attorney General to Mr. R. J. Bickel, dated 3
September 1974 (44 N.C.A.G. 67) must be resolved in favor of the
later enacted statute.
Rufus L. Edmisten, Attorney General
William F. O'Connell
Special Deputy Attorney General
24 September 1975
Subject: Purchase and Contracts; Board of
Transportation; Contracts for Services of
Consultants
Requested by: Mr. Billy Rose
State Highway Administrator
N. C. Department of Transportation
-71-
Question: Do the provisions of Chapter 887 of the
1975 Session Laws, entitled "An Act to
Prohibit Employment of Consultants by
State Agencies without approval of the
Governor" apply to contracts entered into
by the Board of Transportation with
engineering firms for planning, design or
construction of highways?
Conclusion: No. The provisions of Chapter 887
applicable to "contracts for services of a
consultant or advisory nature" do not
include contracts for the planning, design
and construction of highways which the
Board of Transportation is authorized to
enter into by the provisions of Chapter 136
of the General Statutes.
Chapter 887 of the 1975 Session Laws provides that "(b) No State
agency shall contract to obtain services of a consultant or advisory
nature unless the proposed contract has been justified to and
approved in writing by the Governor..." (Emphasis supplied.) The
Act provides that the Governor must find certain facts before
approving the contract, including the necessity for it, that it cannot
be performed by a State agency, that the estimated cost is
reasonable, that the funds have been appropriated for such contract
or they are otherwise available, and that the rules of the Division
of Purchase and Contract have been complied with.
The only exclusions to the Act are provided for in Section 5 of
the Act. Section 5 provides that "This act shall not apply to the
General Assembly, Special Study Commission or the Institute of
Government, nor shall it apply to attorneys employed by the North
Ca olina Department of Justice, or physicians or doctors performing
contractural services for any State agency." The contracts inquired
about do not come within the specific exclusions provided for in
the Act.
The Act does not define the term nor specify what is included within
the term "services of a consultant or advisory nature." It is the
Opinion of this Office that contracts for "services of a consultant
-72-
or advisory nature" as the term is used in Chapter 887 of the 1975
Session Laws does not include those contracts authorized by the
provisions of Chapter 136 to be entered into for planning, design,
or construction of roads by the Board of Transportation. The Board
of Transportation is authorized to perform such work or to let
contracts for such work necessary to carry out the provisions of
Chapter 136 of the General Statutes. Equipment Company v. Hertz,
256 N. C. 277. G.S. 136-28.1(0 provides that "contracts for
professional engineering services" may be let by the Board of
Transportation without taking and considering bids for proposals.
There appears to be no intent by this Act of the Legislature to
repeal or modify the authority already given to the Board of
Transportation to perform such work or to let contracts for such
work, as may be necessary to carry out the provisions of Chapter
136.
Rufus L. Edmisten, Attorney General
Eugene A. Smith
Special Deputy Attorney General
24 September 1975
Subject: State Departments, Institutions and
Agencies; Mental Health; Patients; Co